Role of Legal Aid in Contemporary India

International Journal of Law

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ISSN: 2455-2194, RJIF 5.12

www.lawresearchjournal.com

Volume 2; Issue 6; November 2016; Page No. 01-04

Role of Legal Aid in Contemporary India

Shashank Kumar Dey, Nupur Kumari

KIIT School of law, KIIT University, Bhubaneswar, Odisha, India

Abstract

Legal Aid is professional legal assistance provided free or at nominal cost to indigent persons who need help. It is necessary to

maintain rule of law and stability in the society. The purpose of this research paper is to scrutinize the problem of illiteracy,

destitution, and economic and lack of awareness among the disadvantaged groups and whether the legal aid services are properly

delivering to the needy or not. The prime concern is internal obstacles like lack of understanding law, inability to deal with cases,

corruption etc. It is necessary that government must take steps to ensure legal aid services to poorer sections are implemented and

encourage advocates to serve poor. Legal Aid is not charity it is the duty of state and right of citizens, hence it should be such that

it ensures the Constitutional pledge of equal justice to poorer and weaker section of society.

Keywords: justice, rule of law, legal aid, constitution, equal justice

1. Introduction

“There can be no equal justice where the kind of trial a

man gets depends on the amount of money he has.”

Justice Hugo Black The preamble of the Constitution of India also believes that

there shall be Constitution which shall strive to provide justice

in all forms particularly “social, economic and political; liberty

of thought expression, belief faith and opportunity.” Illiteracy,

rising corruption, destitution, lack of knowledge are some of

the main factors which has veiled underprivileged class from

being noticed by the formally established legal system.

There are various organizations and committees established for

this noble purpose. The reports of different commissions

directed the state to provide for free legal aid to the poor. As

mentioned under the 40th paragraph of Magna Carta “To no one

will we sell, to no one will we deny, or delay, right or justice”.

Equal justice serves as the sacrosanct foundation of the

Constitutional Justice.

The Legal Aid is worshipped as one amongst the basic

Fundamental Right granted to every citizen of India and is

available under one of the most cherished as granted under

article 21 of the Constitution of India. The directive principles

of the state policy grants equal justice and free legal aid to

every citizen. The article 39 A of the Constitution states “the

state shall secure that the operation of the legal system

promotes free legal aid, by suitable legislation or scheme or in

any other way to ensure opportunities for securing justice are

not denied to any citizen by reason of economic or other

disabilities.”

However apart from all these section 304 of CRPC grants legal

aid to the accused at the expense of state as stated-“Where in a

trial before the court of Session, the accused is not represented

by a pleader, and where it appears to the Court that the accused

has no sufficient means to engage a pleader, the court shall

assign pleader for his defence at the expense of the state”.

Order 33 rule 17 of CPC 1908 states that if an indigent person

is not able to avail the legal services then the court shall

exempt him from paying court fees.

2. Historical background

Independence of Judiciary is very important for protecting the

legal, fundamental rights of citizens and everyone. However

unless judicial system is easily accessible to all no country can

develop and grow in effective manner. The haves can approach

Court of law easily but indigent and poor should be given equal

opportunity to get their rights enforced. It is duty and

obligation of state to provide compulsory legal aid to everyone

who cannot afford due to economic or any other reason.

In India where basic rights has been enforced as fundamental

by Constitution Article 14, 21, 22 then at same time by Article

39A Constitution makers put obligation on state to help the

poor and needy, emphasis on legal poverty i.e. incapacity of

people in making full use of laws and its institution, it has been

now accepted as function of ‘Welfare State’. Article 39A

provides that state shall promote legal system which provides

justice on basis of equal opportunity and provide legal aid by

suitable legislative enactments or schemes or in any other way,

to ensure opportunity for securing justice is not denied. As

right to legal aid is Directive Principles, one might question

that whether Constitution makers and government just

provided a lip service to public and made it toothless tiger.

However this view is not valid as Article 39A has been made

mandate by statutory enactment of Legal Service Authorities

Act 1987 and also setting up of Permanent Lok Adalats and

hence Article 39 A is enforced.

The first step regarding legal aid was prior to independence in

1945 when a society named Bombay Aid Society was set, post

-Independence State Legal Aid Committees were formed, 14th

Law Commission Report and Central government scheme

1960, National Conference on Legal Aid 1970 also came into

existence.

2.1 Law Commission Report (1958)

Under Chairmanship of Mr. M.C. Setalwad then Attorney

General of India who in his report investigated various aspects

of judicial administration of nation. Commission suggested

outlines to make some changes in Judiciary for speedier and

less expensive justice. It was held that it is the state obligation


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to provide legal aid and rejected plea that legal aid will make

people more litigious, increase litigation or put load on budget

etc. Also lawyers and legal fraternity should take moral and

social responsibility for implementing free legal aid to poor.

It was also recommended that NH Bhagwati committee report

given regard to Bombay should be applied in all states.

Committee recommended for immediate setting of legal aid

clinics in each High Court Bars by changing High Court rules [1].

2.2 PN Bhagwati Committee Report (1971)

Under chairmanship of Justice PN Bhagwati, the judge who

observed “even while retaining the adversary system some

changes may be effected where the judges be given

participatory role in the trial so for poor, placing them in equal

footing with the rich in the Administration of justice” [2].

The focus of commission was indigent people seeking justice.

Also it wanted rules and legislation must be made considering

socio- economic conditions of the country. The report stated in

detail the Constitution and working of different legal

Committee

(i) Taluka Legal Aid Committee

(ii) District Legal Aid Committee

(iii) State Legal Aid Committee

2.3 Krishna Iyer Committee Report (1972)

Justice Iyer was Chairman of similar commission setup in 22nd

October, and dealt with nexus of law and poverty. His

emphasis was on PIL and widespread of legal aid system that

reaches people rather than people reaching the law [3].

2.4 Juridicare Committee Report (1977) [4]

PN Bhagwati and Krishnan Iyer submitted a joint report named

“report on National juridicare Equal Justice – social justice in

1977”. It recommended establishment of National Legal

Service Authority (NALSA) [5] which will be accountable to

the parliament.

Unfortunately Bhagwati, Iyer report remained in the shelf

along with National Legal Service Bill. In 1980 central

government constituted another committee for implementing

legal aid scheme i.e. “Committee for Implementing Legal Aid

Schemes (CILAS)” however there were certain deficiency in

the working of CILAS hence central government enacted Legal

Service Authority Act 1987 which came in power on

9thNovember 1995. The Act stated to establish National Legal

Service Authority, State Legal Service Authority, District

Legal Service Authority and setting up permanent Lok Adalats.

The Act further provides supervision over State Legal Service

Authority and District Legal Service Authority by the National

Legal Service Authority.

3. Legal Service Act

An old saying that “ability is of little use without opportunity”.

There is a need of opportunity to claim for one’s rights and

defend oneself as and when required and an urge towards

legitimate claims. Equality and equal opportunity serves to be

of great importance as without equality the rights would not

gain any meaning even if they have statutory base.

The concept of article 39 A was pre-existing and it was later

incorporated under the articles 14, 21 and 22 of the

Constitution of India as Fundamental Right. Both the

substantive and procedural law were required to be reasonable

and must be according to the provisions of Article 14 and 21 of

the Constitution of India. As held under Maneka Gandhi v

Union of India [6] the concept of reasonableness was first

developed, there was development of procedural law as well as

the right to secure fair and expeditious trial according to the

provisions as stated in the article 21 of the Constitution of

India. Section 304 of the criminal procedure code 1973 which

granted legal assistance to the accused at the expense of the

State which implies that the provision of free legal aid existed

even before the enactment of the Legal Service Authorities act,

1987. In Hussainara Khatoon v Home Secretary [7] it was held

by the Supreme Court that while providing legal aid and

assistance the elements of reasonableness, fair and just

procedure cannot be negated. In absence of these elements the

person seeking for legal aid shall be denied justice on

economic and other disabilities. In the case of Sheela Bharse v

State of Maharashtra [8] the supreme court observed that

providing legal assistance to the accused who is arrested and

under facing grave peril of his life and liberty has been

considered to be Constitutionally valid as mentioned under the

Article 39 A, 14 and 21 of the Constitution. It is the

fundamental right of the accused under the jeopardy of life and

liberty to secure free legal assistance. However in the case of

Centre of legal research v State of Kerala [9] the apex court

directed the State government support voluntary organizations

and various social associations engaged into provision of free

legal aid.

There were various loopholes found during the working of

CILAS and this served as a pathway for the statutory

establishment of legal service authorities at national, state and

district levels. The Legal Service Authorities Act was enacted

in the year 1987 which further came into force on 9th

November, 1995. The act provides the mechanism for

functioning of National Legal Service Authorities, State and

District level legal service authorities. The act was enacted

under the supervision of Justice R.N Mishra who was then the

Chief Justice of India.

The LSA act fulfils all the main objectives as led down by the

framers of the Constitution under part IV and Article 39 A. The

article empowers the state “to secure that the operation of the

legal system promotes free legal aid, by suitable legislation or

scheme or in any other way to ensure opportunities for securing

justice are not denied to any citizen by reason of economic or

other disabilities.”

The main question which arises in the mind with regard to

legal aid is that who are the persons eligible to secure the

benefit of free legal aid? The answer lies under the context of

section 12 of Legal Services Authorities Act. The free legal

assistance shall be provided to: women, children, schedule

castes, scheduled tribes, beggar and victims of human

trafficking, industrial workers, and persons kept in custody,

economically challenged individuals.

The Section 8 of LSA act serves as guideline for state legal

services authorities act. The State legal service authority

(SLSA) must work corresponding with the rules of the Central

government

3.1 Procedure for Application of Legal Aid The control and management of legal service authorities shall

be under panel lawyers or paralegal volunteers. The one who

seeks legal aid could address their complaints and grievances

either through an E-mail, oral or in written form in the main


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office. The question whether an application falls under the

eligibility criteria could be proved through an affidavit under

section 12 of the LSA act.

The matters concerning litigation must be addressed to the

monitoring committee which includes Member Secretary or

secretary of LSA and other legal practitioners who shall decide

in the time limit of eight weeks that whether an applicant shall

be benefited to free legal assistance or not.

3.2 Lok Adalats

The section 19 of the LSA act authorises the settlement of

disputes by the Lok Adalats. The central, the state, the district

and taluk legal service committees shall be responsible for the

establishment of Lok Adalats which settles the dispute through

the mechanism of compromise between the parties. There are

certain conditions stated under the article 20 of the LSA act.

The cases could be referred to Lok Adalats only upon the

consent of the parties through an application or only if the

court considers the case as appropriate for Lok Adalats to be

dealt with. The Lok Adalats are governed by the principles of

Justice, Equity and fairness in order to arrive at compromise

between the parties [10].

The main objective of Lok Adalats is to create friendly

environment to combat antagonism and suggest alternatives

and solutions which is appreciated by both the parties through

third party intervention. The main motive of Lok Adalats is to

settle the disputes through the process of conciliation.

After the amendment in 2002, under section 22B the provision

has been incorporated to set up permanent Lok Adalats for the

purpose of pre litigation mechanism for settlement and

conciliation of cases which are concerned with the public

utility services. The permanent Lok Adalats consists of a

chairman and the other two members. The chairperson must be

rank of district judge and additional judge or the person who is

higher the rank of district judge. The public utility services

includes the services concerning with electricity, water,

telephone and communication health services and postal

services.

4. Legal Aid- Issues and Challenges in Modern India

It is rightly said that without darkness there is no value of

sunshine. Prosperity and poverty are interrelated and latter

should not be considered as cursed rather be endured. In India

majority population lives in villages and most of them live

hand to mouth existence, for them survival is more important

than knowledge, awareness of their rights and duties.

We the people of India [11] have made social justice an

inalienable claim for legal literacy and fundamental rights,

however painful the hostile forces may be. Other than poverty,

illiteracy, failure of executive in effective playing its role in

implementing welfare policies are major road blocks to legal

aid services. It is therefore solemn duty of Legal Service

Authority to ensure legal aid to poor.

Supreme Court Legal Service Committee has provided

guidelines to provide legal aid to poor free of cost and middle

income group at reasonable cost. However if women and

children approaches the Legal Aid Authority or Committee

then they must be provided such aid without question of

financial position.

4.1 Tools to Tackle

Human resource are very vital for legal aid. The skill and

competence of lawyers, judges, and clerical staffs should be

improved and updated. Latest technology like computers and

other communication facilities should be facilitated. Most

importantly all persons involved must co- ordinate properly.

Corporate sector and NGO’s must participate in this activity

and lethargic and red- tapism should be eradicated. ‘Also

voluntary organizations and social action groups engaged in

legal aid program must be encouraged and supported by the

state’.

The Central Authority also known as NLSA must take

measures to spread legal awareness and educate the weaker

sections of society about their rights, benefits and privileges

guaranteed by social welfare legislation.

The need of hour is innovative and effective policies which can

increase the utility of the legal aid policy. Various State Legal

Authority have done commendable and plausible job as

effectively applying the legal aid with innovative techniques.

4.2 Several instances of State Legal Service Authority are-

Haryana

Haryana State Legal Service Authority has permanent and

continuous Lok Adalats established which enable public to take

their disputes at pre- litigative stage to Lok Adalats for possible

amicable settlement.

Counselling and conciliation Centres- This provides a forum to

parties to express their views freely without any legal

constraint. If such mediation is successful then parties are

referred to Lok Adalat for recording their statements and pass

award according and these decree have value of Civil Court.

Accreditation to NGO’s and Social Action Groups- The

authority provides Accreditation to genuine and authentic

NGO’s and Social Action Groups which work in field of Legal

Literacy/ Legal Awareness/ Para Legal Activities etc. They

also get grant from the NLSA for the required goal.

4.3 Delhi

Delhi is the capital of India and has a cosmopolitan character

and it is expected from Delhi to be role model for other State

Legal Service Authority. Even here new methods and tactics

has been applied to get better results.

Permanent Legal Services Clinic- This clinic is manned by

retired Judges, Bureaucrats, and eminent social personalities.

The doors to justice are open 24*7 and the trained officials

provide aid and advice even through phone.

Mobile Legal Service Clinic- The clinic vans visit various part

of Delhi like slum areas, industrial areas, unauthorised

colonies, college, schools etc and assisted by expert and well

trained officials. They provide Legal Aid and counselling to

target class as well create awareness of legal rights and

remedies [12].

5. Recommendations

The suggestive measures in this field are Alternative Dispute

Resolutions (ADR’s) like Arbitration, Negotiation, Mediation,

and Conciliation these can be effective legal tool and provide

inexpensive justice to the masses. Lok Adalats are the bed rock

of legal service authorities and largely used to help the

overburdened judiciary.

Adequate Financial Support- Juridicare programs cannot

succeed without sufficient resources and funding. The funds

allotted at present is not sufficient for such important scheme

and substantial allocation of funds should be made to make the


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functioning of NALSA more effective.

No compromise on quality- The quality must be maintained.

The lawyers in the panel should be experienced. Law Ministry

should come with policy that senior lawyers must deal at least

10 cases free of cost in a year.

Performance Appraisal by all Legal Aid Authorities- Here each

District Legal Aid Service Authority should be compared and

analysed with other District Legal Aid Service Authority, inter

as well as intra states to encourage Legal Aid. State Authorities

also can take similar steps in this regard by filing PIL for the

benefit of public at large [13].

Law Schools-The Law colleges, Universities must have free

Legal Aid clinic which be manned by law students and through

which the students can provide basic legal aid and advice to

local people. Also legal academicians who with their

knowledge and experience should play an active role in

implementation of legal aid.

6. Conclusion

“The concept of seeking justice cannot be equated with the

value of dollars. Money plays no role in seeking justice.”

Justice Blackmun in Jackson v. Bish [14]

Legal Aid is obligation on the state and not charity. It is very

important that all legal functionaries should work actively, so

as to achieve the Constitutional pledge in letter and spirit. One

must ensure equal justice for all. However it is sad that even

after more than 60 years of Independence the downtrodden and

weaker sections of the society feel handicapped in pursuit of

Justice and should be major concern for those who are engaged

in justice delivery system.

The strategy should be such that even the weakest sections of

the society living in remotest part of India should not feel that

he suffered injustice. Priority should be given to women,

Children, persons in custody and backwards of society who

need special legal aid to evolve. Despite all the odds and

obstacles we can hope that different legal authority should

become potent force which will achieve the desired goal and

dream of the founding father of Constitution of India and the

people with whom are wielded powers of the sovereign power

of the state. Legal awareness will definitely create confidence

among them and will enable them to conscience use of law as

an instrument of safeguarding the interest of the masses.

7. References

1. 14th Law Commission Report Chapter. 27(1):587-624.

2. Committee of Justice Bhagwati on Free Legal Aid

constituted in the year Article, 1971.

3. Committee on Legal Aid titled as processionals justice to

poor set up in the year, also read Iyear Krishna and

Krishna Swamy. VR Krishna Iyer A Living Legend.

Universal Law Publishing. 1972-2008.

4. Juridicare. Equal justice-Social Justice Report, 1977.

5. Nalsa.gov.in

6. 1 SCC 248: (1978) 2 SCR 621: AIR 1978 SC 597, 1978.

7. (1980) 1 SCC 98, 1978.

8. 3 SCC 596, 1986.

9. AIR 1986 SC 1322

10. Needs assessment study of selected legal services

authorities, Marg. 2012, 41-42.

11. The preamble of the constitution

12. www.legalserviceindia.com

13. Public Interest Litigation-Legal Aid and Lok Adalats,

Mamta Rao, Eastern Book Company

14. 2d 571- Court of Appeals, 8th Circuit, 1968.


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ISSN: 2455-2194, RJIF 5.12



Adoption of good faith in English contract law

Yiming Zhou

School of Law of Central South University, Changsha, Hunan, China

Abstract

Good faith in English Contract Law has been prioritized to protect the consumers. However, the aspect of the consideration of good

faith in the English Contract law has remained contentious and debatable in the broader aspect of business to business negotiation

and other commercial contracts (Cheyne & Taylor, 2001).

Keywords: Good faith,negotiation, trasanction

1. Introduction

The English Contract Law today has been able to develop

sequence of approaches which aimed at dealing with the

behavior of the parties in times of negotiation as behavior

bearing on the creation and context of the Contract. This notion

has impacted the pre-contractual agreement directly, as most of

the necessities of good faith that is being used in negotiations

and dealings might not be feasible if the same documents have

not been secured for the contract validity (Clarke, 1993) [3].

Since the previous years, former judges have also required to

give consideration on good faith into the English Contract law

as the government aspect which can be sued to all dealings and

contracts. However, such notions have failed to attain such, and

some other reforms.

Accordingly, good faith has been regarded as an essential

aspect in the system of the Civil Law which runs through the

whole Law of Obligations (Beatson & Friedmann, 2002) [1].

The goal of this paper is to analyze the significance of Good

Faith in English Contract Law. It will also discuss whether it is

important to adopt a general duty to negotiate in good faith.

2. Discussion and Analysis

2.1 Good Faith

In the US Uniform Commercial Code, the lawmakers have

been able to generate the good faith concept as an eminent and

overriding aspect. This has been done by expressively using

fifty out of 400 sections and implies such with many other

parts. For instance, from Section 1 to Section 203 of the

mentioned code, it has been stated that each duty or contract

with such Act implies a responsibility of good faith in terms of

enforcement and performance. In this Code, good faith has

been referred to as honesty in the context of conducting a

transaction or honesty in the conduct of any transaction.

Nonetheless, and for all its purposes and intentions, such has

been stated by the lawyers from the USA which has trivial

meaning than the contextual and procedural fairness that is the

nonexistence of dishonesty and fraud, misinterpretation among

others.

The American Restatement (Second) of Contracts has also

considered a broader context in good faith. For instance, they

have defined bad faith as paragraph 205 of the ARSC which

includes the evasion of the bargaining spirit, the absence and

inadequate diligence as well as slacking off, providing

insufficient performance, the authority to specific conditions,

interference with other involved stakeholder’s performance or

failure in cooperation

An ongoing debate has been focused on the appropriateness to

comprehend good faith as a goal standard and not merely

become a mindset as a subject of the contractual involved

parties. Some scholars who are referred to as the

Communitarians have an argument in line with the judges that

considers community standards of decency and fairness in

terms of the contractual bargains (Mason, 2000) [7], in which

other object have been regarded as dangerous in the business

cycle. However, this argument has been found to be more

confusing. In the English Law it is a big factor on knowing

when a contractual condition which operates in the market

becomes unfair (Stewart, 1998) [12]. If such term has not been

successful, it should be terminated from the application in the

market and the courts have their ways of protecting the

customers from these unworkable items, by considering highly

recognized approaches of using other conditions as well as

creating a contract that would generate effectiveness of the

business.

In order to ensure these, Good Faith has been regarded as a

principle which guides the formulation and implementation of

contracts among different provisions and laws. It also guide the

hyperactivity of the American merchants and the existing

liberal behavior that comply with the court’s jurisprudences

narrowed and streamlined down to its significance for the

Contract of law to the concept known subjective rule which

indicates a “good faith purchase”. This was a situation which

gives consideration on the purchase of properties or the

business title and was efficiently expressed on early 18th

century, in the Lawson v. Weston case, as the empty head and

pure heart context, it can be claimed that all the manners of the

English Contract law is mostly in consistent with fairness.

Accordingly, the English Courts may not be considered as

adequate as it should be in accordance with the consideration,

the imbalance of the gross in its obligation should still be

considered as well (Clarke, 1993) [3].

The conceptual lineage and history of English Contract law can

be realized on post-Benthamite Utilitarianism. It has been

regarded by Atiyah-an English Scholar who has been stressed

out by the neo liberalism concept of Hayek. In view of this, it

is considered that if good faith needs a substantial evaluation


6

and examination rather than being procedural, can this be

regarded as a simple part of the general concept from the free

market, in consideration of the mirage of social justice (Steyn,

1991) [10]. In order to become fair, the English scholar has

rejected the extreme perception that substantial fairness is not

possible to attain. Nonetheless, since Atiyah strongly perceives

that conceptual fairness, in which the English Contract Law has

a strong commitment which results to have a relative fairness.

The dogma and policy of consideration, although significantly

diverse in function and its nature than the dogma of good faith,

has been considered in the English Contract Law, which is also

essential aspect of objective good faith.

The consideration must be of some value and not entirely

insulting and cynical, and this should not be immoral and

illegal. In a later paper, it has been regarded that such

formalistic aspect, considered in New Zealand Court has been

overemphasized by a better concept of majority of the juries

who considers that one of the critical roles of contract law is to

provide effective approach for contractual dealings based on

achieving sensible and rational expectations and needs of the

involved parties. Also there is not a place of different

objectives between the rational expectation of the involved

parties and the needs of god faith (Steyn, 1997) [11]. The

context of the obligation to give consideration to good faith in

considering contractual dealings is integrally offensive and

repulsive in terms of the adversarial condition of the parties

when conducting a negotiation. Herein, each of the party

involved has given the chance to show their interest and

concerns, as long as such person does not commit

misinterpretations in the court.

The obligation considers negotiation through good faith has

been recognized to be irrelevant both in practice and

frameworks. This has been consequently inconsistent in its

dogma as part of the negotiating team in line with the case

under Lord Ackner such as Walford v Miles. Different

opinions, even positive or negative ones, have been concerned

with the dogma of the good faith and the feasibility of

highlighting the policy and aspect into English Contract Law.

Therefore, as mentioned in Peel (2007) [8], in spite of the idea

that the aspect of good faith has been improved in different

legal systems all over the world, lawyers, still do not consider

ideas and contexts that a specific body should act as well as

work in good faith.

The dogma of good faith is a universal situation or

circumstances of enforceability of a negotiation which

indicates that both parties have moved in good faith. For

instance, it has been explained that the policy of good faith as

well as fair transactions and negotiations noted that in

practicing the obligations and accountabilities, each of the

involved entities must act with regard to fair negotiation and

good faith as well as they should not consider or they should

restrict the given responsibility. Hence, good faith in the

conduct and enforcement of negotiations as a highly

recognized concept are being considered in various legal

systems which include the English Contract Law.

2.2 Adoption of Good Faith in English Contract Law

As regarded above, the principal objective of this is to analyze

and discuss the policy and dogma of good faith as being

adopted and not be dismissed by the English Contract law, to

make it more capable in enforcing the laws and rules in binding

contract. With this concept, the case of Stiletto Visual

Programmes Ltd v Interfoto Picture Library must be regarded

as reference. In this case, the complainant has hired forty seven

photographs to the Offender. These photographs were sent with

a note and were put in a jiffy bag. The note composed of nine

terms which include clause that provided that a cost of

£5.00/transparency/daily should be paid if said items were kept

for more than fourteen days. However, the Offender has not

used said items and forgot about it. In this case, the

complainant has sued the Offender.

It has been asserted that in some civil law structures and

approach, and perhaps in majority of the legal system external

to the common law. Under the provision of responsibilities and

the provision of the overarching principles, both parties should

consider and act in good faith when enter into contract

(Quillen, 1988) [9]. This do not merely means that the parties

must not trick or misinform one another; the effect could be

most pertinently implied by the symbolical context of fair

playing, being clean or relaying one’s cards to face upward.

The principle of good faith should be fair and open in

negotiations and transaction. It has also been mentioned that

the English Contract law has been able to consider piecemeal

resolutions as a reply to illustrate the issues and conflicts of

unfairness instead of entrusting and obligating itself to no such

superseding and intervening policy and regulations. In this case

however, the court has rejected the second condition, while the

defendant declined and denied in paying the obligation. Thus,

the jury has ruled favoring the complainant. In this respect, it

can be interpreted in the concept of market-individualism in

which consumer have perceived that the concept of good faith

has been unlimited and open ended healthy policy or principle

(Cole, 1994) [4].

On one hand, British Telecommunications plc v Timeload Ltd

could be described as the case in which irrespective and good

faith in the negotiation, definitely come near on such

technique. In this case, nonetheless, the determination of its

closeness should be delegated or represented by this aspect in

to the English Contract Law and the distances of the courts in

accepting this principle. This can be respondent with Walford v

Miles, in which in line with the closeness of the principle to be

represented shows that unless the confrontational and

accusatorial ethics of the English Contract Law has been

neglected and with the notion that it is not that distant. For

some instances, the case of Marks and Spencer plc v Baird

Textile Holding Limited have shown that eagerness and court’s

promptness to be extended by the embedment of good faith. In

this regard, the Court of Appeal give consideration on the

behaviour and conduct from classical individualistic ideologies

as well as the opposing arguments Bair in terms of the

cooperative type and description of the formers connection and

affiliation with Marks & Spencer. Thus, even to such aspect,

that is, good faith is noticeable; the unique as well as

distinctive doctrinal concept is visible.

Nevertheless, the feasibility of adopting good faith by

covertness may be considered by the pressures that have been

established by such adoption. Those pressures includes the

world of the civil and the common law, which has been

authoritative in viewing that good faith negotiations has been

the basis of other system in the concept of contract law

(MacMillan, 2003) [6]. In addition, most of the legal systems of

other nations that have been unified because of the EU have

also give consideration to good faith doctrine among

negotiations and contracts. This has been considered in two


7

directives which include the Unfair Terms in Consumer

Contracts and Commercial Agents. The first is considered

unfair if as opposed to the needs and demands of the aspect of

good faith, leading to a significance imbalance with rights and

responsibilities of both entities that arise under such contract

which may lead to the loss and disadvantage of the consumers.

On the other hand, Commercial Agents directives are regarded

as the dutiful act and the act of good faith to the interest of both

parties. With these directives, the context of Good Faith has

become a familiar concept. In addition, it is also logical to note

that the English Contract law as exerted by its doctrine and

because of the pressures faced has accepted it. Nonetheless, it

can also be essential to consider that lawyers can state that the

use of good faith as generic guidelines would be considerable.

In addition, in the case of First National Bank v Director

General of Fair Trading, the condition in a typical and usual

aspect of loan dealings enabled bank to raise additional

payments as well as interest in which the loaner defaulted on

its repayment and consider deal in paying their debt via

installment with a longer period. Accordingly, Regulation 3(2)

(b) states that the negotiations and agreements which are

relevant to the competence and acceptability of remuneration

should also be tested in line with fairness. Consequently, the

term as far as the House of Lords are concerned, was fair

enough, however, the Lordships have regarded that the good

faith indicates fair and open negotiations. In the same manner,

Steyn have warned that any decently, morally and essentially

processed in terms of interpretation of the needs in good faith

must not be included.

In this regard, the context of good faith in English Contract

Law should be given enough consideration. The cynical and

doubtful view has given five adverse and unconstructive

arguments against the adoption of the general doctrine of good

faith in English Contract law. The first is that, a principle of

good faith when it requires both entities in considering the

legitimacy of the expectations and interests of each other, cuts

against the significantly individualist ethic that is under the

concept of English contract law.

For instance, in the case given above such as Walford v Miles,

it has been stated that considering the needs for good faith

would be incompatible with the accusatorial ethics that

underpins English Contract Law. On the second aspect, it can

be noted that the concept of good faith, assumes a set of moral

standards in opposed as to which the contractors are being

judged, however it was not clearly stated whose or which

morality should be considered. As relevant to the second

aspect, the third concern notes that the principle of good faith

would lead to having different inquiries and questions into the

state of minds of the contractors. The next is that good faith has

the capability of controlling matters of aspects that consider the

remedial concept while eliminating the authority and power of

the negotiating entities. If the aspect of good faith has indicated

unspecified choice integrated with the notion that such aspect

gives challenge on the authority of the negotiating entities then

there exists a clearer concept that individuals should be

skeptical.

It is essential to consider that the advantage and disadvantages

of the arguments on considering good faith and also relies on

which framework and model of good faith should be suitable

for a specific case or situation. There are three frameworks of

good faith, according to Fried (1981) [5], which an individual

should comprehend before allowing positive or negative

arguments. The first one is that requirement of good faith that

generates on the aspect of having a fair dealing that are already

existing in a particular terms and conditions of such

negotiation. The next is the good faith that behaves on the

aspect of fair negotiations that are directed by a crucial

cooperative morality. The difference between the first two

good faith models is that the latter do not have the capability of

tracking determined standards, on a contrary, it attempt to

generate the market in a more rational subscribing the rules of

cooperation. The last one is what is known as the visceral

justice by Michael Bridge. Herein, the judges response in an

impressionistic manner to the merits of the conditions and

complete the cases on time, all in the sense of good faith. This

model is also considered with judicial license.

3. Conclusion

With the discussed cases and the analysis, the principle of good

faith in negotiation should be adopted by English Contract

Law. Different sample cases have shown the usefulness of

considering the good faith. However, there are still arguments

and debates about this principle. In this regard, the courts

should be able to set a precedent regarding this matter.

Although, the principle of good faith may not be recognizable

and in some cases, might not be applicable, it does not affect

the set of a good standard in English Contract Law. Hence, the

aspect to deal as well as negotiate using good faith is capable

of implementation and application only as obligatory

negotiation. In this respect, it should be expected that the

English Law should consider the use of good faith as one of the

essential and mandatory requirements.

4. References 1. Beatson J, Friedmann D. Good Faith and Faulting Contract

Law, Clarendon Press, Oxford, 2002.

2. Cheyne J, Taylor P. Commercial Good Faith, 245 New

Zealand Law Journal, 2001.

3. Clarke M. The Common Law Of Contracts In 1993: Is

There A General Doctrine Of Good Faith? 318 Hong Kong

Law Journal, 1993.

4. Cole TRH. Law? All In Good Faith, 18 Building And

Construction Law, 1994.

5. Fried C. Contract As Promise: A Theory Of Contractual

Obligation, Cambridge, Massachusetts, Harvard

University Press, 1981.

6. Macmillan C. How Temptation Led To Mistake: An

Explanation Of Bell V. Lever Brothers Ltd. 119 L.Q.R.

2003, 625.

7. Mason AF. Contract, Good Faith and Equitable Standards

in Fair Dealing, 116 Law Quarterly Review, 2000.

8. Peel E. Treitel On The Law Of Contract, 12th Ed. London:

Sweet & Maxwell, 2007.

9. Quillen GD. Contract Damages and Cross-Subsidization’,

61 Southern California Law Review, 1988, 11:25-41.

10. Steyn J. The Role of Good Faith and Fair Dealing in

Contract Law: A Hair-Shirt Philosophy? Denninglj 1991,

131.

11. Steyn J. Contract Law: Fulfilling the Reasonable

Expectations of Honest Men, 113 the Law Quarterly

Review, 1997.

12. Stewart IB. Good Faith in Contractual Performance and in

Negotiation", 72 American Law Journal, 1998.


8


ISSN: 2455-2194, RJIF 5.12



Dishonour of cheque: An overview

Pushpanjali Sood

Research scholar, Department of Laws Himachal Pradesh University, Shimla, Himachal Pradesh, India

Abstract

The present day economies of the world which are functioning beyond the international boundaries are relying to a very great

extent on the mechanism of the negotiable instruments such as cheques and bank drafts and also the oriental bill of exchange

prevalent in India, known as ‘hundis’. Since cheque plays an important role in business transaction, dishonour of cheque threatens

the credibility in transacting business through cheque. Thus, the object of bringing section 138 on statute appears to be, to inculcate

faith in the efficacy of banking operations and credibility in transacting business on Negotiable Instruments.

Keywords: cheque, negotiable instrument, dishonour of cheque, drawer, drawee

1. Introduction

The cheque system in India is of British parentage. It is

common knowledge that the London Goldsmiths were the first

bankers in England and the system of payment of cash through

cheques dates back to 17th century [1]. Gradually, the cheque

became widely and popularly accepted as negotiable

instrument in settlement of trade and commerce transactions.

Advent of cheques in the market has given a new dimension to

the commercial and corporate world. Its time when people have

preferred to carry and execute a small piece of paper called

cheque than carrying the currency worth the value of cheque.

Dealings in cheques are vital not only for banking purposes but

also for the commerce and industry and the economy of the

country. Rhetorically therefore a truncated cheque system is

injurious to the economic health of the country as the system of

cheques is a matter, a subject that concerns everybody whether

he is a man on the street, a layman, a business magnate, an

industrialist, a banker or a member of bench or bar.

One of the biggest problems, which we are facing in the

smooth functioning of the cheque system, is Dishonour of

cheques, which threatens the credibility of this negotiable

instrument. The problem is becoming bigger with the passage

of time. It is hindering smooth business transactions. The great

hardship is caused to a person if a cheque issued in his favour

is dishonoured due to insufficiency of funds in the account of

the drawer of the cheque. To discourage this, the dishonour of

certain cheques has been made an offence by an amendment of

the Negotiable Instruments Act, 1881 by the Banking Public

Financial Institutions and Negotiable Instrument Laws

(Amendment) Act, 1988. After this amendment, a new chapter

consisting of section 138 to 142 has been inserted in the

Negotiable Instruments Act, 1881 [2].

Prior to the year 1988, the act of dishonour of cheque was

treated as an offence under Indian Penal Code. Other remedy

was to file a suit for recovery which was civil in nature and

was dilatory. To ensure promptitude in remedy against

defaulters and to ensure credibility of the holders of the

negotiable instrument a criminal remedy of penalty was

inserted in Negotiable Instruments Act, 1881.

Section 138 of Negotiable Instruments Act, 1881

A negotiable instrument is lifeblood of commerce and to

ensure this concept section 138 of Negotiable Instrument Act,

1881 was enacted. This section deals with the dishonour of

cheques as a result of insufficiency of funds in the account of a

drawer [3]. The Act does not define the offence contemplated

under section 138. It is a special offence not covered by the

Indian Penal Code. However, the Act describes precisely the

nature and conditions precedent for constituting an offence

within the meaning of Section 138.

Section 138 provides that- “Where any cheque drawn by a

person on an account maintained by him with a banker for

payment of any amount of money to another person from out

of that account for the discharge, in whole or in part, of any

debt or other liability, is returned by the bank unpaid, either

because of the amount of money standing to the credit of that

account is insufficient to honour the cheque or that it exceeds

the amount arranged to be paid from that account by an

agreement made with that bank, such person shall be deemed

to have committed an offence and shall, without prejudice to

any other provisions of this Act, be punished with

imprisonment for a term which may be extended to two years,

or with fine which may extend to twice the amount of the

cheque, or with both: Provided that nothing contained in this

section shall apply unless—

a) The cheque has been presented to the bank within a period

of three months from the date on which it is drawn or

within the period of its validity, whichever is earlier;

b) The payee or the holder in due course of the cheque, as the

case may be, makes a demand for the payment of the said

amount of money by giving a notice in writing, to the

drawer of the cheque, within thirty days of the receipt of

information by him from the bank regarding the return of

the cheque as unpaid; and

c) The drawer of such cheque fails to make the payment of

the said amount of money to the payee or, as the case may

be, to the holder in due course of the cheque, within fifteen

days of the receipt of the said notice.

Explanation

For the purposes of this section, “debt or other liability” means

a legally enforceable debt or other liability” [4]

The title of the Chapter XVII makes it clear that dishonour of

every cheque will not bring the case within the purview of


9

Section 138 and a person can be held liable only if the cheque

has been issued in discharge of, in whole or in part, of any

legally enforceable debt or liability. This section draws

presumption that one commits the offence if he issues the

cheque dishonestly. It aims of not only protecting the interests

of the genuine drawers of the cheques with a view to give them

a final opportunity to make payments in respect of dishonoured

cheques, but also imposing punishments on the guilty [5].

Ingredients of the Offence

To constitute an offence under Section 138 of the Negotiable

Instruments Act the following ingredients are required to be

fulfilled:

1) Cheque should have been issued for the discharge, in whole

or in part, of any debt or liability.

2) The cheque should have been presented within the period of

three months or within the period of its validity, whichever

is earlier.

3) The payee or the holder in due course should have issued a

notice in writing to the drawer within thirty days of the

receipt of information by him from the bank regarding the

return of the cheque as unpaid.

4) After the receipt of the said notice by the payee or the

holder in due course, the drawer should have failed to pay

the cheque amount within fifteen days of the receipt of the

said notice.

5) On non-payment by the drawer, the complaint should have

been filed within one month from the date of expiry of the

grace time of fifteen days, before a Metropolitan Magistrate

or not below the rank of a Judicial Magistrate of the first

class.

i) Issuance of Cheque for Discharge of any Debt or Other

Liability:

It is essential that the dishonoured cheque should have been

issued in discharge, wholly or partly, of any debt or other

liability of the drawer to the payee. The expression ‘debt or

other liability’ means a legally enforceable debt or other

liability. If a cheque is given by way of gift or present and it is

dishonoured by the bank, the maker of the cheque is not liable

for prosecution [6].

In Maruti Udyog Ltd Vs Narender [7], the Supreme Court held

that by virtue of Section 139 of the Negotiable Instruments

Act, the court has to presume that the holder of the cheque

received the cheque for discharge of a debt or liability until the

contrary is proved.

In Tamil Nadu Retrenched Census Employees Association Vs K

Thennan [8], it was held that arrears of legal fee of an advocate

can be classified as legally enforceable debt and complaint

under section 138 cannot be quashed.

ii) Presentation of Cheque

Legally a cheque can be presented for payment repeatedly any

number of times within three months from the date of drawing

of the cheque or within the period of its validity which is

earlier.

In K C Nadar Vs Chenabal M R Simon [9] the question was

raised for the first time before the court whether a cheque may

be presented on any number of times during the period of its

validity. This was the case which propounded the basic theory

that a cheque can be presented any number of times during the

period if its validity. Further, the Supreme Court held in

Sadanandan Bhadran Vs Madhvan Sunil Kumar [10] that

section 138 of the Act does not put any embargo upon the

payee to successively present a dishonest cheque during the

period of its validity and a fresh right arises with every

presentation but cause of action arises only once when the

notice is served.

iii) Reasons for Dishonour of Cheque

a) Stop Payment In Electronics Trade and technology development Corporation

India Vs Indian Technologies and Engineers (Electronics) Pvt.

Ltd. [11] The Supreme court of India observed that if, before

presentation of a cheque, notice is issued by the drawer to the

payee or holder in due course not to present the cheque for

payment, and it is still presented and, on the drawer’s

instructions, dishonoured, Section 138 is not attracted. But in

another case Modi cements Ltd. Vs Kuchil Kumar Nandi [12],

the Supreme Court disapproved its own observations in earlier

case and held that even if a cheque is dishonoured because of

“Stop Payment” instruction to the bank, section 138 would get

attracted. It was further affirmed in M/s M. M. T. C. Ltd. Vs

M/s Medchl Chemicals and Pharma (P) Ltd. [13]

b) Bank Account Closed

The dishonour of cheque on the ground that the account has

been closed by the drawer of the cheque constitutes an offence

under section 138. “Account Closed” would mean that “though

the account was in operation when the cheque was issued,

subsequently the account is closed [14]. It shows that the drawer

has no intention to make payment. Closing of account is one of

the modes by which a drawer can render his account

inadequate to honour the cheque issued by him, therefore, the

closing of the account would not enable the accused to wriggle

out of his liability under section 138 of the Act [15]. In N. A.

Issac Vs Jeeman P. Abraham & Anr [16], it was held that cheque

issued when account has already been closed, provision of

Section 138 will apply.

c) Refer to the Drawer

“Refer to drawer” in the ordinary meaning amount to a

statement of a bank, “we are not paying, go back to the drawer

and ask why”, or else “go back to the drawer and ask him to

pay”. The remarks “refer to drawer” necessarily means, as per

banking custom, that the cheque has been returned for want of

funds in the account of the drawer of the cheque. It is a

courteous way normally adopted by a bank to show its inability

to honour the cheque for want of funds [17].

In M/s Electronic Trade & Technology Development

Corporation Ltd. Vs M/s Indian Technologist and Engineer

(Electronic) Pvt. Ltd. [18] It was held that if cheque is returned

with endorsement ‘Refer to drawer’ or Instructions for

stoppage of payment or exceeds arrangement, it amounts to

dishonour of cheque.

d) Post Paid Cheques

A “post dated” cheque is a bill of exchange when it is written

or drawn, it becomes a ‘cheque’ when it is payable on demand [19]. A post-dated cheque cannot be presented before the bank

and as such question of its return does not arise. It is only when

the post dated cheque becomes a cheque with effect from the

date shown on the face of the said cheque, Section 138 comes

into play.


10

iv) Notice

Notice is a very important stage. It is the non-payment of

dishonoured cheque within fifteen days from the receipt of the

notice that constitutes an offence. Issuing of a cheque and its

dishonour is not an offence. The offence is when the drawer

receives a notice from the payee and he fails to pay the

dishonoured cheque amount within the grace period of 15

days that constitute an offence any demand made after the

dishonour of cheque will constitute a notice.

The requirement of giving of notice is mandatory. The main

problem is the serving of the notice to the accused as accused

makes all efforts to avoid the receipt of the notice. In order to

deal with such situations, the courts have evolved a principle

called as deemed service of a notice under section 138(b). The

legal position regarding deemed service of a notice U/s 138(b)

has been that whenever a notice is sent by the payee to the

drawer of the cheque and the said notice is refused to be taken

or the addressee deliberately avoids its service, there is deemed

to be service of the same [20].

v) Filing of Complaint

A fair reading of Section 138 of the Act together with its

proviso will make it clear the cause of action for initiating

proceedings would complete when the drawer of the cheque

fails to make the payment within fifteen days of receipt of the

notice. The offence would be deemed to have been committed

only from the date when the notice period expired [21]. A

complaint under section 138 is to be filed within one month of

the date on which the cause of action arises. The day on which

cause of action occurs is to be excluded for reckoning the

period of limitation for filing a complaint U/s 138 of the Act [22].

vi) Jurisdiction Hon'ble Apex Court in case of K. Bhaskaran vs. Shankara [23],

had given jurisdiction to initiate the prosecution at any of the

following places.

1. Where cheque is drawn.

2. Where payment had to be made.

3. Where cheque is presented for payment

4. Where cheque is dishonoured.

5. Where notice is served upto drawer.

However, in its recent decision in Dashrath Rupsingh Rathod

v. State of Maharashtra & Anr. [24], the Supreme court held that

in cases of dishonour of cheque, only those courts within

whose territorial limits the drawee bank is situated would have

the jurisdiction to try the case.

Subsequently, many people had raised difficulties about this

judgment. This is so because the payee of the cheque had to

file the case at the place where the drawer of the cheque has a

bank account. However, now the legal position has completely

changed with above new Ordinance, i.e., the Negotiable

Instruments (Amendment) Ordinance, 2015, which has been

promulgated by the President on 15 June 2015, and which has

immediately come into force with effect from 15 June 2015.

The above Supreme Court judgment is now of no consequence

since this Ordinance supersedes it, clarifying jurisdiction

related issues for filing cases of offence committed under Sec

138.The main amendment included in this is the stipulation that

the offence of rejection/return of cheque u/s 138 of NI Act will

be enquired into and tried only by a Court within whose local

jurisdiction the bank branch of the payee, where the payee

presents the cheque for payment is situated [25].

The jurisdiction of filing cheque dishonour cases under Section

138 of the N.I. Act is now changed by the above Ordinance as

under:

Now a cheque bouncing case can be filed only in the court

at the place where the bank in which the payee has account

is located.

Secondly, once a cheque bounce case has been filed in one

particular court at a place in this manner, subsequently if

there is any other cheque of the same party (drawer) which

has also bounced, then all such subsequent cheque bounce

cases against the same drawer will also have to filed in the

same court (even if the payee present them in some bank in

some other city or area). This will ensure that the drawer of

cheques is not harassed by filing multiple cheque bounce

cases at different locations. So, even multiple cheque

bounce cases against the same party can be filed only in one

court even if payee presents the cheques in different banks

at different locations.

Thirdly, all cheque bounce cases which are pending as on

15 June 2015 in different courts in India, will be transferred

to the court which has jurisdiction to try such case in the

manner mentioned above, i.e., such pending cases will be

transferred to the court which has jurisdiction over the place

where the bank of the payee is located. If there are multiple

cheque bounce cases pending between the same parties as

on 15 June 2015, then all such multiple cases will be

transferred to the court where the first case has jurisdiction

as per above principle.

Thus, this new Ordinance now introduces some clarity and

uniformity in the matter of cheque dishonour cases. This

Ordinance takes care of the interests of the payee of the cheque

while at the same time also taking care that the drawer of the

multiple cheques is not harassed by filing multiple litigations at

different locations to harass him (if more than one cheque has

bounced). This Ordinance supersedes the Supreme Court

decision dated 1 August 2014 [Dashrath Rupsingh Rathod v.

State of Maharashtra, (2014) 9 SCC 129] or any other

judgment / decision of any court (Supreme Court or High

Courts) on this issue [26].

vii) Punishment

Bouncing of a cheque invites criminal prosecution under

section 138 of the Negotiable Instruments Act, 1881.

Punishment for the offence under Section 138 of NI Act is

imprisonment up to two years or fine which may extend to

twice the cheque amount or both. The offence is bailable,

compoundable and non-cognizable.

viii) Civil Action

The payee may also initiate money recovery procedure in a

jurisdictional civil court apart from prosecuting the drawer for

criminal offence.

Conclusion

Bounced cheques are one of the most common offences

plaguing the financing world. According to the Supreme Court,

there are over 40 lakhs such pending cases in the country.

Although, there have been a few amendments in the Act which

has made the Act, a self contained statute, wherein provisions

have been made to check the delays and to ensure speedy

justice with more deterrent punishment, yet the problem of


11

cheque bouncing is not decreasing. Moreover, the law is

unnecessarily complicated and there is lack of provisions for

forcing the appearance of the accused in the court. Though the

amendments to the Negotiable Instruments Act, 1881 are

helpful in dealing with the offence of bouncing of cheque, they

are not fully proved successful in stopping the offence.

References

1. Shantilal Jain. Presentations vis-à-vis cause of Action.

CrLJ. 2006; 4:273.

2. Section 138 to 142 introduced by Chapter XVII to the

Negotiable Instrument Act, 1881.

3. Naveen Thakur. Dishonour of Cheque on Instructions to

Stop Payment- Offence u/s 138, N. I. Act, when made out?

CrLJ. 1998; 104:113.

4. See Section 138 of Negotiable Instruments Act, 1881.

5. Dr N Maheshwara Swamy. Criminal Liability of the

Drawer of a Dishonoured Cheque u/s 138. CrLJ. 1994;

100:67.

6. Mohan Krishna (B) Vs Union of India. CrLJ 1996;

636(AP).

7. (1999) CrLJ 266 (SC). See also MMTC Ltd Vs Medchl

Chemicals & Pharma (P) Ltd. CrLJ. 2002; 266(SC).

8. AIR 2007 Mad (199).

9. 1994 CrLJ 3515 (Ker).

10. 1998 CrLJ 4066 (SC).

11. AIR 1996 SC 2339 (SC).

12. AIR 1998 SC 1057.

13. AIR 2002 SC 182. See also Goa Plast (P) Ltd Vs Chico

Ursula D’ Souza AIR, 2004 SC 408.

14. Veerajhavan (J) Vs Lalith Kumar 1995 CrLJ 1882.

15. 1999 CrLJ. 2883.

16. Civil Court Cases. 2005; (1):690(SC).

17. Voltas Ltd Vs Hiralal Agarwalla (1991) 71 Comp as 273

(Cal).

18. AIR 1996 SC 2339.

19. Anil Kumar Sawhney Vs Gulshan Rai (1993); See also

Ashok Yashwant Badava Vs Surendra Madhar Rao

Nighojabar AIR. 2001 SC 1315

20. Nirmal Chopra. Deemed Service of a Notice u/s 138(b) of

Negotiable Instruments Act, CrLJ 1881, 2005, p.340

21. Shantimal Jain. Graces to Chequeholder. CrLJ. 2006,

p.305.

22. M/s Mediworld Infotech Hyderabad Vs M/s CEI

Conslutancy. CrLJ. 2006; 2566

23. AIR 1999, SC 3762

24. (2014)9 SCC 129.

25. Approval to introduce the Negotiable Instrument

(Amendment) Bill, 2015 in Parliament http://pib.nic.in/

newsite/PrintRelease.aspx?relid=118533 .

26. Dr. Ashok Dhamija. Jurisdiction in Cheque Bouncing

Cases is changed by New Ordinance, Superseding SC

Judgement.available at http://tilakmarg.com/news/

jurisdiction- in -cheque -bouncing -cases -is –changed- by

–new-ordinance.


12


ISSN: 2455-2194, RJIF 5.12



Protection of good Samaritans: A study in the light of Supreme Court’s decision in save life foundation case

Dr. Sapna Sukrut Deo

Assistant Professor, New Law College, Bharati Vidyapeeth Deemed University, Pune, Maharashtra, India

Abstract

Good Samaritans have the fear of legal consequences, involvement in litigation and repeated visits to police station. There is urgent

need to tackle these issues. There is need to establish legal framework so that Good Samaritan is empowered to act without any fear

of adverse consequences or harassment. Save life must be the top priority. This research paper discuss the rights and protection of

good Samratians which has decided by supreme court in case of save life foundation.

Keywords: good samaritans, bystanders, golden hour, right to life

1. Introduction

Whenever we open a newspaper we come across news of road

accidents and the number of deaths caused. Not only this while

travelling on a road we come across road accident incidences

too and we do pray or hope the victims to be fine. But if we are

a witness to such accident and find a victim in such situation,

we do get into the dilemma of whether to help out the victim or

not. We will rather find someone to help such victim or call an

ambulance and police. By doing such we free ourselves from

the burden by putting it on Police and the ambulance personal.

And why so, why we can’t drop such victim to a hospital or try

some first aid treatments? The answer to this question is that

we just don’t want to get involve into the procedural hassle.

So many accidental deaths are caused because of getting

delayed treatments. The bystanders are scared to help because

they know that they will be detained at the hospital for long,

then there will be police inquiry and they will have to attend

court trials as witness. Many of the good Samaritans have to go

through these hassles. This doesn’t sound encouraging to

others who wish to help.

Now there’s good news for all those who do really wish to help

such victims. An NGO called Save Life Foundation by their

efforts and concern filed a PIL for the purpose of protecting the

good Samaritans. For that the victims get timely help so that

their lives could be saved. [Landmark judgment Save life

Foundation & Anrv. Union of India & Anr. dated March 30,

2016].

The petitioner ‘Save Life Foundation’, a non-profit, non-

governmental organization filed petition under Article 32 of the

Constitution of India in public interest for the development of

supportive legal framework to protect Samaritans i.e.,

bystanders and passers-by who render the help to the victims of

road accidents. The petitioner aimed to create a unique network

of medical responders to come to the victim’s aid. The

petitioner also drafted recommendations to address the critical

deficiencies in the Motor Vehicles Act and other laws

governing road safety.

The petitioner contended that the Department of Road

Transport was responsible for framing motor vehicle

legislation and evolving road safety standards in India. The

WHO in its ‘World Report on Road Traffic Injury Prevention,

2004’ has projected that by 2020, road accidents will be one of

the biggest killers in India. People are hesitant to render

immediate help to the road accident victims. The victims lay

wounded on the road for some time till the arrival of police.

Delay rendering medical help in such cases sometimes is fatal.

Good Samaritans have the fear of legal consequences,

involvement in litigation and repeated visits to police station.

There is urgent need to tackle these issues. There is need to

establish legal framework so that Good Samaritan is

empowered to act without any fear of adverse consequences or

harassment. Save life must be the top priority.

Accident cases require fastest care and rescue which could be

provided by those closest to the scene of the accident.

Bystanders’ clear support is essential to enhance the chances of

survival of victim in the ‘Golden Hour’ i.e., the first hour of the

injury. As per the WHO India Recommendations, 50% of the

victims die in the first 15 minutes due to serious cardiovascular

or nervous system injuries and the rest can be saved through by

providing basic life support during the ‘Golden Hour’.

Right to life is enshrined under Article 21 which includes right

to safety of persons while travelling on the road and the

immediate medical assistance as a necessary corollary is

required to be provided and also adequate legal protection and

prevention from harassment to good Samaritans.

The people have the notion that touching the body could lend

them liable for police interrogation. Passerby plays safe and

chose to wait for the police to arrive whereas injured gradually

bleeds to death.

The Court observed: “It remains undisputed before us that it is

not insufficiency of law but it is implementation of law which

is a matter of concern. Different guidelines including

guidelines for ambulance Code, emergency care and

appropriate directions to the hospitals on the highways for

handling the accident trauma patients, as a top priority are

stated to have been issued. And it constituted a Committee

consisting of 8 members to submit the suggestions.”

2. Standard Operating Procedure

The Central Government issued the following standard

operating procedure, namely:

1. The Good Samaritan shall be treated respectfully and

without any discrimination on the grounds of gender,

religion, nationality, caste or any other grounds.


13

2. Any person who makes a phone call to the Police Control

Room or Police Station to give information about any

accidental injury or death, except an eyewitness may not

reveal personal details such as full name, address, phone

number etc.

3. Any police official, on arrival at the scene, shall not compel

the Good Samaritan to disclose his/her name, identity,

address and other such details in the Record Form or Log

Register.

4. Any police official or any other person shall not force any

Good Samaritan who helps an injured person to become a

witness in the matter. The option of becoming a witness in

the matter shall solely rest with the Good Samaritan.

5. The concerned police official(s) shall allow the Good

Samaritan to leave after having informed the police about

an injured person on the road, and no further questions shall

be asked if the Good Samaritan does not desire to be a

witness in the matter.

3. Examination of Good Samaritan by the Police i) In case a Good Samaritan so chooses to be a witness, he

shall be examined with utmost care and respect and

without any discrimination on the grounds of gender,

religion, nationality, caste or any other grounds.

ii) In case a Good Samaritan chooses to be a witness, his

examination by the investigating officer shall, as far as

possible, be conducted at a time and place of his

convenience such as his place of residence or business, and

the investigation officer shall be dressed in plain clothes,

unless the Good Samaritan chooses to visit the police

station.

iii) Where the examination of the Good Samaritan is not

possible to be conducted at a time and place of his

convenience and the Good Samaritan is required by the

Investigation Officer to visit the police station, the reasons

for the same shall be recorded by such officer in writing.

iv) In case a Good Samaritan so chooses to visit the Police

Station, he shall be examined in a single examination in a

reasonable and time-bound manner, without causing any

undue delay.

v) In case the Good Samaritan speaks a language other than

the language of the Investigating Officer or the local

language of the respective jurisdiction, the Investigating

Officer shall arrange for an interpreter.

vi) Where a Good Samaritan declares himself to be an eye-

witness, he shall be allowed to give his evidence on

affidavit, in accordance with section 296 of the Code of

Criminal Procedure, 1973 (2 of 1974) which refers to

Evidence in Formal Character on Affidavit.

vii) The complete statement or affidavit of such Good

Samaritan shall be recorded by the Police official while

conducting the investigation in a single examination.

viii) In case the attendance of the Good Samaritan cannot be

procured without delay, expense or inconvenience which,

under the circumstances of the case, would be

unreasonable, or his examination is unable to take place at

a time and place of his convenience, the Court of

Magistrate may appoint a commission for the examination

of the Good Samaritan in accordance with section 284 of

the Code of Criminal Procedure, 1973 (2 of 1974) on an

application by the concerned.

The Superintendent of Police or Deputy Commissioner of

Police or any other Police official of corresponding seniority

heading the Police force of a District, as the case may be, shall

be responsible to ensure that all the above mentioned

procedures are implemented throughout their respective

jurisdictions with immediate effect.

The Court modified para 2(vii) as: “The affidavit of Good

Samaritan if filed, shall be treated as complete statement by the

Police official while conducting the investigation. In case

statement is to be recorded, complete statement shall be

recorded in a single examination.” and approved remaining

guidelines.

It also directs that the court should not normally insist on

appearance of Good Samaritans as that causes delay,

expensesand inconvenience. The concerned court should

exercise the power to appoint the Commission for examination

of Good Samaritans in accordance with the provisions

contained in section 284 of the Code of Criminal Procedure,

1973 suomotu or on an application moved for that purpose,

unless for the reasons to be recorded personal presence of

Good Samaritan in court is considered necessary.

However, it clarified that guidelines in relation to protection of

a Good Samaritan are without prejudice to the liability of the

driver of a motor vehicle involved in a road accident as

specified under section 134 of the Motor Vehicles Act, 1988.

By allowing the petition the court recorded that guidelines be

approved and be enforced as binding till appropriate legislative

provisions are made. And directed that the scheme framed by

the Central Government and the order be widely published

through electronic media and print media for the benefit of

public so that public is made aware and that serves as impetus

to good Samaritans to extend timely help and protection

conferred upon them without incurring the risk of harassment.

Well if these instructions are followed with heart by the

citizens then many lives will be saved. It is said that saving life

of someone is the biggest good deed of all. No donation is as

priceless as giving or saving someone’s life.

4. References

1. Utkarsh Anand. Rush accident victims to hospital, Good

Samaritans must get appreciation: SC, Indian Express,

2016; 4:29. Available at http://indianexpress.com/article/

india/india-news-india/rush-accident-victims-to-hospital-

good-samaritans-must-get-appreciation-sc/.

2. Vishwas Kothari, Comment by Prof. Dr. Mukund Sarda.

SC push to protect do-gooders hailed, The Times of India,

2016. Available at http://timesofindia.indiatimes.com/city/

pune/SC-push-to-protect-do-gooders-hailed/articleshow/

51986465.cms.

3. http://savelifefoundation.org/.

4. Accident victims attendants Good Samaritans, Odisha

bulletin, available at http://odishabulletin.com/accident-

victims-attendants-good-samaritans/.

5. Ban plea on rod carriers-SC notice to Centre, The

Telegraph, available at http://www.telegraphindia.com/

1130716/jsp/nation/story_17121825.jsp.

6. https://indiankanoon.org/docfragment/79865001/?formInp

ut=savelife.


14


ISSN: 2455-2194, RJIF 5.12



The economic and financial crimes commission and its role in curbing corruption in Nigeria:

Evaluating the success story so far

1 Dr. IO Babatunde, 2 Dr. AO Filani

1 Reader & Ag. Head, Department of Jurisprudence and International Law, Ekiti State University, Ado-Ekiti, Nigeria 2 Senior Lecturer, Department of Jurisprudence and International Law, Ekiti State University, Ado-Ekiti, Nigeria

Abstract

As part of the efforts to combat corruption in Nigeria, the Economic and Financial Crimes Commission was one of the institutions

put in place to fight the menace. It has very wide powers to fight corruption, and financial crimes. This paper discusses the

activities of the Commission in the war against corruption, financial and economic crimes. Though the Commission recorded

appreciable achievements in combating economic and financial crimes, some factors that militated against its success were equally

identified and appraised. The paper concludes that major albatross encountered by the Commission in the performance of its

functions lies not in the legal instruments with which to work, but the will-power, weak implementation and enforcement

machinery by the Commission.

Keywords: economic crimes, financial crimes, commission, corruption, Nigeria

Introduction

There is a plethora of anti-corruption institutions in Nigeria

before the establishment of the Economic and Financial Crimes

Commission [1]. These institutions include the Legislature, the

Judiciary, the Police, Code of Conduct Bureau, Standard

Organisation of Nigeria, Budget Monitoring and Price

Intelligence Unit, etc. [2]

The financial industry is enmeshed in issues such as electronic

fraud and deployment of funds for illegitimate activities [3].

Nigeria is losing over 200 billion dollars per year as a result of

corruption and financial crimes [4]. Money laundering, for

instance, has reached an alarming rate with private and public

service officials indicted in the practice [5]. Many government

officials have been caught in the process of trafficking money.

Often times, such officials are politicians, a status they exploit

to escape justice [6]. Billions of Naira is being lost by the

Federal Government everyday due to the activities of illegal oil

bunkerers [7] and trade malpractices [8]. The indulgence of some

Nigerians in Advance Fee Fraud has destroyed the reputation

and credibility of the country all over the world. This has made

it unnecessarily difficult for majority of innocent Nigerians to

transact business both locally and internationally [9].

In the address of former President of the Federal Republic of

Nigeria, Olusegun Obasanjo while signing the Anti-Corruption

Bill on the 13th of June, 2000, observed inter-alia:

Corruption has been responsible for the instability of

successive governments since the first republic. Every coup

since then has been in the name of stamping out the disease

called corruption. Unfortunately, they often turn out to be

worse than the disease. And Nigeria has been the worse for it.

Nigeria’s external image took a serious bashing as our beloved

country began to feature on top of every corruption index… We

must tackle it head-on for our country to make any meaningful

economic progress. With corruption, there can be no

sustainable development, nor political stability [10].

It is because of the prevalence of corruption and financial

crimes in Nigeria that necessitated the establishment of the

Economic and Financial Crimes Commission (hereinafter

referred to as “the EFCC”) on the 13th day of December, 2002.

This paper shall examine the establishment, functions of the

Economic and Financial Crimes. It shall equally evaluate the

activities of the anti-corruption Body, asses the impediments to

the effective realisation of the objectives of the Commission as

well as the achievement of the Body so far.

Establishment of the Economic and Financial Crimes

Commission

The Economic and Financial Crimes Commission was

established on the 13th of December, 2002 after the Bill

enacting the Commission was passed by the Senate and the

House of Representatives had been authenticated by Ibrahim

Salim, the then Clerk of the National Assembly [11].

The Economic and Financial Crimes Commission act, 2002

was repealed by the Economic and Financial Crimes

Commission (Establishment) Act, 2004. The Act makes the

Economic and Financial Crimes Commission a body corporate

with perpetual succession and a common seal. This implies that

the Commission can sue and be sued in its corporate name and

hold or dispose of properties [12].

Functions of the Economic and Financial Crimes

Commission

The functions of the Economic and Financial Crimes

Commission as contained in sections 6 and 7 of the Economic

and Financial Crimes Commission Act include the

investigation of all financial crimes, coordination and

enforcement of all economic and financial crimes laws [13], the

adoption of measures to identify, trace, freeze, confiscate or

seize proceeds derived from terrorist activities, economic and

financial crimes related offences, the adoption of measures to

eradicate the commission of economic and financial crimes, the

examination and investigation of all reported cases of


15

economic and financial crimes, dealing with matters connected

with the extradition, deportation and mutual legal or other

assistance between Nigeria and any other country involving

economic and financial crimes and carrying out and sustaining

public and enlightenment campaign against economic and

financial crimes within and outside Nigeria [14].

The Enforcement Strategies of the Economic and Financial

Crimes Commission.

According to Ribadu [15], the Commission’s enforcement

strategies since inception include: investigation, arrest and

detention of suspects, arraignment and prosecution of suspects,

confiscation and seizure of properties, freezing of accounts and

deportation of accused persons [16]. Individuals and

organisations can file complaints through a written petition to

the EFCC, which will then initiate investigation if the case falls

within the power of the EFCC. The Public Enlightenment Unit

of the Commission is charged with the responsibility of

sensitising members of the public about the danger of

economic and financial crimes in Nigeria in order to reduce its

incidence [17]. Prosecution of cases by the Commission is done

by contracting them out to private legal practitioners on behalf

of the Commission.

Activities of the Economic and Financial Crimes

Commission

The Commission is presently investigating high-profile

Nigerians involved in economic and financial crimes. The

Commission is investigating how Sambo Dasuki, Musibau

Obanikoro (former Minister of State for Defence) and

Governor Ayo Fayose of Ekiti State removed N4.6 billion from

the account of the office of the National Security Adviser

between 4th and 13th April, 2014 [18], the sharing of ₦23 billion

by the former Minister of Finance, Mrs. Nenadi Usona among

North-Eastern States at the instance of former Petroleum

Minister, Mrs. Diezani Alison-Madueke for the prosecution of

the 2015 presidential election [19] and the tracing of $40 million

to Ex-President Jonathan’s Cousin, Roberts Azibaola, to a bank

in London. The cash was wired through Citibank N.A Canada

Aquare, Canary in Wharf London into the account of Plus

Holdings Nigeria Limited of Azibaola [20].

Olisah Metuh, former Publicity Secretary, who is standing trial

before the Federal High Court, Abuja at the instance of the

Economic and Financial Crimes Commission has shown his

readiness to refund the sum of ₦400 million fraudulently

collected from the office of the National Security Adviser for

the re-election of former President Jonathan [21].

The EFCC equally arraigned former Chief of Air Staff, Air

Marshall Dikko Umar at the Federal High Court, Abuja on

alleged money laundering, criminal breach of trust and

corruption involving ₦7.382 billion [22]. The suit filed against

the former chief of General Staff, Alex Badeh by the EFCC,

revealed how he bought properties in Abuja for his three

children at the sum of ₦970 million [23]. The former Minister of

Aviation, Femi Fani-Kayode was arraigned at the Federal High

Court, Abuja for withdrawing the sum of ₦2.5 billion illegally

from the Central Bank of Nigeria and paid into the accounts of

six members of the Peoples’ Democratic Party and the

Goodluck Support Group. It was alleged that Fani-Kayode got

about ₦840 million from the fund [24].

Sambo Dasuki, former National Security Adviser is at the

centre of massive investigation into the alleged

misappropriation of about $2.1 billion meant for the

procurement of arms to fight Boko Haram insurgency in

Nigeria [25]. In 2015, the EFCC filed a 13 count charge of false

assets declaration against the Senate President, Dr. Bukola

Saraki, at the Code of Conduct Tribunal (CCT). He was alleged

to have corruptly acquired many properties while in office as

Governor of Kwara State, but failed to declare some of them in

the forms earlier filed and submitted to the Code of Conduct

Bureau. He was equally accused of making an anticipatory

declaration of assets upon his assumption of office as Governor

which he later acquired [26].

Constraints of the EFCC in the Performance of its Duties of

Prosecuting

Apart from prosecuting suspects, EFCC is equally charged

with supervising, controlling and coordinating all activities

relating to the investigation of offences relating to economic

and financial crimes [27]. In the course of performing these

functions, the EFCC encountered many challenges. The

Challenges include:

(a) Selective Prosecution

Many Nigerians are accusing EFCC of partiality in its

operation. They believe that the Commission is selective. For

instance, Kupolati once accused the Commission of selective

operation during the time of President Obasanjo [28]. The story

of selective prosecution is the same under the present

administration of President Buhari [29].

(b) Plea Bargaining

Plea bargaining is arrived at through negotiations between the

prosecutor and the defence during which a possible resolution

of the charges against the accused person is reached [30]. It is

very sad to observe that the execution of plea bargaining in

Nigeria allows criminals to escape punishment. In an address to

the 5th Annual General Conference of the Nigerian Bar

Association in Abuja in 2011, the then Chief Justice of Nigeria,

Dahiru Musdapher condemned the practice of plea bargaining

when he said that the plea has no place in Nigerian law but

invented to provide soft-landing for treasury looters [31]. The

application of plea bargaining in the Pension Fraud involving

one John Yusuf shows that plea bargaining is a fraud. In the

said case, John Yusuf, a former Police Pension Fund Chief was

sentenced to a term of two years in prison or an option of a fine

of N750,000.00. In the said agreement, the convict pleaded

guilty to the charge against him. He opted for the option of fine [32].

(c) The Presiding Judge

Ordinarily, the trial judge is expected to dispense justice

without fear or favour. He holds the balance between the

prosecution and the defence, he is expected to decide cases

before him impartially and whether the prosecution has

discharged the burden of proof as prescribed by law [33]. Some

courts have been tainted by allegations of corruption or

succumbing to political influence. Ayo Salami, retired

president, Court of Appeal publicly accused Katsina-Alu (CJN

as he then was) of trying to put pressure on him to decide an

electoral petition in favour of the Peoples’ Democratic Party [34]

In 2007, Peter Odili, former Governor of Rivers State secured a

judgment at the Federal High Court restraining the EFCC from

investigating the finances of his Government [35]. With regard


16

to Lucky Igbinedion, the former Governor of Edo-State, he

reached a plea bargain agreement with the EFCC concerning

various counts of money laundering amounting to about $25

million. The trial judge was accused of deviating from the

terms of agreement by sentencing Igbinedion to ridiculous sum

of 3.5 million fine. Igbinedion paid the fine immediately. The

fact that he had the money on him gave room for suspicion that

he knew what the judgment was going to be [36].

Under the EFCC Act, courts are to treat the cases filed by the

EFCC expeditiously [37]. The Chief Judges of the Federal High

Court, High Court of the Federal Capital Territory, Abuja and

State High Court are enjoined to designate courts and judges to

hear matters filed by the Commission. The congestion of the

cases in our conventional courts, inadequate judicial officers

and recording proceedings in long-hand are seriously affecting

expeditious hearing of cases filed by the EFCC.

(d) Political Interference

The Chairman of the EFCC stays in office at the pleasure of the

president [38]. The EFCC presented a list of about 135 people

who should not run for office during President Obasanjo’s

regime in 2007. The list contained the names of the perceived

enemies of the president [39]. Aondoakaa was accused of

interfering with the cases prosecuted by the EFCC when he

was Attorney-General of the Federation [40]. He was accused of

destroying cases relating to corrupt State Governors by

discontinuing most of the cases [41]. After an order of the court

freezing $35 billion of Ibori assets in 2007 [42], Aondoakaa

provided Ibori’s counsel with a letter indicating that Ibori had

been investigated in Nigeria and no charges had been filed

against him. The letter made the court in the United Kingdom

to defreeze Ibori’s assets [43].

(e) Allegations of Corruption.

Larmode, the former Chairman of EFCC, admitted that

corruption is traceable to the Commission. He said that those

he was supposed to send out to carry out the Commission’s

mandate on certain individuals are themselves enmeshed in

corruption [44]. Recently, the Commission arrested one of its

operatives, Mohammed Biu, a Deputy Superintendent, for

collecting $150,000 from some military officers being

investigated by the Commission [45]. The Federal Government

has also set up a panel to probe EFCC and ICPC. The panel

was mandated to investigate high-profile corruption cases

allegedly compromised by the EFCC and ICPC [46].

(f) The Challenge of Immunity.

Section 308 of the 1999 Constitution as amended provided for

executive immunities for President, Vice President, Governor

and Deputy Governor of a State. In Fawehinmi v I.G.P. [47],

Oguntade, J.C.A (as he then was) observed that:

The simple and ordinary meaning of section 308(1) of the

Constitution, 1999 is that the person to which that provision

applies could not be made to face civil or criminal proceedings

in court [48].

The court has held that public officials can be investigated

while in office, for the purpose of filing a criminal charge

against them after leaving office [49]. It is doubtful whether such

investigation can be thorough because the President, Vice-

president, Governors and their deputies cannot be arrested for

the purpose of taking their statements [50]. Some of the

prosecution witnesses may not be readily available after the

completion of their tenure. Former Governor Dariye of Plateau

State relied on the provision of section 308 of the Constitution

to frustrate his prosecution while in office [51].

Cases Prosecuted by the EFCC

The EFCC has arraigned some nationally prominent public

office holders on corruption charges. Many of these corruption

cases have made little progress in courts and those convicted

have faced relatively little or no prison term. Other public

office holders who have been widely implicated of corruption

have not been prosecuted [52]. Some of the nationally prominent

public office holders prosecuted by EFCC are hereunder

discussed:

(a) EFCC and Bode George

Bode George was arraigned with Aminu Dabo, Captain

Abidoye and Zama Maidaribe for allegedly awarding contracts

valued N100 billion without due process during his tenure as

the Chairman of the Nigerian Ports Authority [53]. George was

convicted on October 26, 2009 [54]. The conviction of Bode

George was, however, set aside by the Supreme Court for

failure to prove the charge against him [55]. The effect of this

acquittal is that Bode George has no criminal record [56]. The

case also revealed the slow pace of our criminal justice system.

George was sentenced to two and a half years imprisonment in

2009 and he had completed the term before the case was finally

put to rest in 2013. Unfortunately, he cannot sue for

compensation or damages in the absence of malice on the part

of the prosecution [57].

(b) EFCC and Lucky Igbinedion

Lucky Iginedion was arraigned at the High Court of Enugu for

money laundering funds totaling N4 billion when he was

Governor of Edo State [58]. The 147-Count charge preferred

against him included fraudulent embezzlement, stealing and

use of several corporate companies as conduit pipes to siphon

several billions of Naira from the state. He pleaded guilty to all

the counts in the charge sheet. He was subsequently convicted

and fined N3.5 million following his plea of guilty, which

came as a result of plea bargain between him and the EFCC.

(c) EFCC and DiepreyeAlamieseigha

Alamieseigha was Governor of Bayelsa State between 1999

and 2005. In September 2005, he was arrested by British

Authorities in London. The London Metropolitan Police found

about £1 million in cash at his home and charged him with

money laundering. After being admitted to bail, he managed to

flee the United Kingdom. The EFCC said he disguised as a

woman and re-appeared in Bayelsa Sate, claiming he had been

transported there by God. As a sitting Governor, he enjoyed

immunity from prosecution in Nigeria, but four months later,

he was impeached by the State Legislature and the EFCC

charged him with embezzling about $55 million [59].

In July, 2007, he pleaded guilty to failing to declare his assets,

his front companies were convicted of money laundering and

the court ordered his assets seized. He was sentenced to two

years imprisonment and released, for time served, the day after

his sentencing [60].

(d) EFCC and TafaBalogun

Tafa Balogun was the first nationally prominent public office

holder in Nigeria to be convicted by the EFCC. He was


17

arraigned for failing to declare his assets and his companies

were convicted of eight count charge of money laundering. He

was sentenced to six months imprisonment and the court

ordered the seizure of his assets reportedly worth in excess of

$150 million [61].

(e) EFCC and Cecilia Ibru

Ibru was arraigned on a 25-count charge of corrupt practices in

office [62]. The EFCC accused her of granting a credit facility in

the sum of 20 million US Dollars to Waves Project Limited

which was actually above her credit approval limit. She was

equally accused of approving the granting of a credit facility in

the sum of N2 billion to Petosan Farm Limited without

adequate security as laid down by the regulation of Oceanic

Bank [63]. Ibru was convicted on the 8th of October, 2010 and

sentenced to six months imprisonment [64]. She also forfeited

properties and assets valued N191 billion [65].

(f) EFCC and Others

In FRN v Amadi [66], the accused was involved in the offence of

attempt to obtain money by false pretences [67], forgery and

uttering [68]. He was convicted and sentenced to imprisonment

without an option of fine. In the Federal Republic of Nigeria v

Nwakagbu and Others [69], the accused persons were tried on a

two-count charge of conspiracy to vandalise Nigerian

Petroleum Corporation Pipeline [70]. They were convicted and

sentenced to life imprisonment.

Most of the judgments delivered in respect of cases involving

public office holders were through plea bargain. It has been

argued that the procedure has made nonsense of our criminal

justice system [71]. It was argued that Plea bargaining does not

necessarily mean remorsefulness on the part of the accused

person compared to pleading guilty under the Criminal

Procedure Act. It simply encourages an accused to plead guilty

and thereby enjoy some benefits from his outlawed behaviour [72].

In all the cases mentioned above, sentences imposed by courts

were just too light compared with the gravity of the offence

committed. For instance, Tafa Balogun who embezzled public

funds of about N10 billion got just six months imprisonment.

Alamieseigha was sentenced to two years imprisonment and

released for time served, the day after his sentencing, Cecilia

Ibru who stole about N191 billion was sentenced to six months

imprisonment [73].

Prevention and Control of Financial Crimes by EFCC

There are so many provisions of the EFCC Act and other laws

that empower the Commission to investigate and prosecute

offences committed by any person, corporate bodies under the

EFCC Act or any other law relating to financial crimes [74]. To

ensure adequate prevention and control of financial crimes, the

EFCC Act empowers the Commission to be the coordinating

agency for the enforcement of the provisions of the Money

Laundering Act, Failed Banks (Recovery of Debts) and

Financial Malpractices Act, Banks and Other Financial

Institution Act, Miscellaneous Offences Act, Provisions of

Criminal Code and Penal Code and any other law or regulation

relating to economic and financial crimes [75].

For the purpose of enabling the Commission to discharge its

duty of preventing financial crimes and coordinating the

enforcement of the laws relating to financial crimes, the

various heads of regulatory bodies in the financial industry are

automatic members of the Commission. The bodies are

Nigerian Deposit Insurance Corporation, Security and

Exchange Commission and Central Bank of Nigeria. The

Commission can easily and adequately get information

concerning any deposit or transfer and suspicious transaction

from these financial institutions [76].

As a result of flow of information, the EFCC was able to

prosecute about 239 money laundering cases, resulting in 12

convictions in 2005 [77]. In 2006, the EFCC investigated about

950 suspicious transaction cases involving about N450 billion

from local banks [78]. Zero Tolerance published that an estimate

of $500 billion is laundered annually worldwide and out of this

figure, an estimated ten percent is traceable to Nigeria [79].

The activities of the EFCC also extend to Advance Fee Fraud [80]. The Commission mounts surveillance on the activities of

fraudsters as a result of the influence of Information and

Communication Technology (ICT) [81]. According to Ribadu,

the internet enables the criminals to reach a greater number of

potential victims more quickly and sometimes without being

traced [82]. At the International level, the Commission maintains

a working relationship with the International Police

(INTERPOL), the Financial Action Task Force (FATF) of the

G8 [83], the UK Metropolitan Police, Federal Bureau of

Investigation (FBI), Canadian Police and the Scorpion of South

Africa.

EFCC and International Community

The EFCC was established in 2002 due to International

pressure to address pervasive economic and financial crimes in

Nigeria. Countries like the United States, United Kingdom and

the European Union provided substantial assistance in

technical support and capacity building to the Commission.

Between 2006 and 2010, the European Union, being the largest

donor to the Commission provided US $235 million of

assistance to the Commission [84]. Foreign law enforcement

agencies such as the US Federal Bureau of Investigation and

London Metropolitan Police assisted in training key EFCC

investigators [85].

The United Kingdom prosecuted some Nigerian officials for

money laundering. The Metropolitan Police service brought

money laundering charges against former Governors Dariye,

Alameiseigha and Ibori. One of the associates of Dariye was

sentenced to three years imprisonment for laundering more

than €1.4 million of public funds stolen by Dariye by an

English Court [86]. In 2007, a court in the United Kingdom

froze Ibori’s assets worth $35 million. In May 2011, Ibori was

extradited from Dubai to London over allegations of stealing

$292 million in the State Funds [87]. In 2011, the US

Department of Justice sought a court order to seize $1 million

US property of former Bayelsa Governor, Alameiseigha [88].

Achievements of EFCC

The EFCC has recorded success in the areas of investigation,

arrest and prosecution of prominent Nigerians. The EFCC

successfully investigated and prosecuted Lucky Igbinedion [89],

Diepreye Alameiseigha [90], Cecilia Ibru [91], Joshua Dariye [92],

Jolly Nyame [93] and other prominent political public office

holders were also charged.

The EFCC did well in recovering various huge sums of money

looted by corrupt public Nigerians. According to Oguche [94],

the EFCC recovered money and assets derived from crime

worth over $700 million, £3 million pounds from British


18

Government between 2003 and 2004. EFCC also refunded the

sum of $4.48 million to an 86 year old Hong Kong woman,

Julianah Ching being money recovered from advance fee fraud

investigation. The Commission recovered N100 billion assets

from Ex-Governors [95] and N55 million bribes in 2005 from

Committee Members of the National Assembly given as bribe

to lobby for increase in education budget [96]. The Commission

secured the return of about N50 million from the British

Metropolitan Police as proceeds of corruption recovered from

Dariye’s girlfriend [97].

The EFCC also enjoys cooperation and collaboration with

Federal Bureau of Investigation, the UK’s Office of Fair

Trading (OFT) and Metropolitan Police. The Commission has

recorded success in changing the negative image of Nigeria in

the international sphere. As a result of this, Nigeria was made a

member of Egmont Group of Financial Intelligence Units in

2007 [98].

Another notable achievement of the EFCC is the establishment

of its Training Institute in Abuja and Zonal Offices in strategic

cities around the country [99].

Conclusion

When you fight corruption, it fights back [100], the meaning of

this is that war against corruption in Nigeria is a difficult task.

The EFCC has not successfully attacked corruption because of

lack of political will to fight corruption on the part of the

Government. The EFCC is not free from the whims and

caprices of the President and they are not properly funded. The

institutions that are expected to assist the EFCC in fighting

Corruption are themselves corrupt. The Police, the Judiciary,

the Legislature and the EFCC are corrupt. There is nothing

wrong with the EFCC Act. It is conceded that it is not possible

to have a perfect law or institution [101]. The problem is

enforcement.

Recommendations

In view of the conclusion reached above, the following

recommendations are offered in order to strenghten the EFCC

in combatting corruption in Nigeria.

It is urgently necessary to improve the legislative framework

for combatting corruption in Nigeria. We must make necessary

amendment to all laws designed to combat corruption,

particularly the EFCC Act in order to make their enforcement

more efficient and effective. The EFCC Act should be

amended to create the offence of living above one’s income.

The Act should also be amended so as to make the

Commission independent both politically and financially with

the assurance of security of tenure of office for official of the

Commission.

The EFCC Act should be amended by allowing the Chief

Justice of Nigeria, the President of the Senate, the Speaker of

the House of Representatives, the President of the Nigerian Bar

Association, President of the Nigerian Labour Congress and

Representatives of two non-government organisations to jointly

appoint the Chairman of the EFCC. They should also be

responsible for the removal if there is any reason warranting

the removal of the Chairman before the expiration of his

tenure. The Commission must also receive its fund from the

Federation Account directly and not from the Presidency.

The idea that the EFCC chairman should be a law enforcement

or security agency official should be discarded. The EFCC Act

requires that the Commission’s Chairman should be a serving

or retired member of any government security or law

enforcement agency not below the rank of assistant

Commissioner of Police or equivalent [102]. The requirement

should be removed and replaced with criteria focused solely on

integrity, experience and ability. Ordinarily, it is good to

appoint a career law enforcement official as EFCC chairman

but corruption has tarnished the image of the police and it is

very difficult to identify senior officers who are untainted by

any such allegations [103]. The Government should as a matter

of paramount importance, appoint qualified people of integrity

to the position of EFCC Chairman whether they have a law

enforcement background or not.

It is equally necessary to put in place the necessary machinery

that will remove or reduce all the hindrances facing the EFCC.

For instance, corruption and financial crimes are very complex

to detect. Therefore, investigators must be trained in order to be

effective [104]. EFCC must also engage the services of

competent counsel to handle their cases. Those who are

involved in corrupt practices are ready to secure the services of

the best lawyer available in order to escape conviction. Ricky

Tarfa said that a defence counsel has to take advantage of

anything that might benefit his clients [105].

The EFCC must be well funded. Investigation and prosecution

of corruption cases require enough money. Training and re-

training of investigators require money, the Commission needs

money to engage the services of competent prosecuting

counsel. The former Chairman of the EFCC, Larmode

lamented that lack of fund was hindering the work of the

Commission [106].

It will be difficult for the EFCC to fight corruption if the

Commission itself is corrupt. The Commission must set an

example of institutional transparency by requiring all their

officials to publicly declare the total value of their assets.

Clarion calls are being made by well-meaning Nigerians that

the EFCC Boss and the Director of State Security Service

should be relieved of their positions because of corruption

allegations leveled against them. If the assertion is correct, it

will be honourable for the leadership of the institutions to

throw in the towel and resign to pave way for a non-corrupt

official.

It is also necessary to reform the plea bargaining process in

Nigeria. From the Tafa Balogun, Igbinedion and the Yusuf’s

cases the pattern of granting ridiculously lenient sentence had

been entrenched. A legal framework to regulate the role of the

prosecuting counsel, defence counsel and the judges involved

must be put in place. Where a person found guilty of an

offence is sentenced to pay a fine, the amount of the fine

should not be less than the amount involved in the case [107].

The executive must stop the idea of interfering in the work of

the EFCC. The power of the Attorney General of the

Federation as a member of Government to interfere in anti-

corruption cases must be reduced by amending section 174 of

the Constitution which gives the Attorney –General power to

take over any criminal prosecution.

The Constitution should be amended by making the exercise of

the power of the Attorney-General to enter a nolle prosequi a

subject of judicial review.

The court should be allowed to determine whether or not the

exercise of the power is corruptly done. Therefore, section 174

of the Constitution that gives Attorney-General the power to

take over or discontinue a criminal matter should be amended

to include a subsection (4) to wit:


19

The power of the Attorney-General to discontinue a criminal

matter pursuant to section 174(1) (c) shall be a subject of

judicial review.

Unfortunately, the Supreme Court decided otherwise in State v

Ilori [108]. The Supreme Court has now ruled that it can overrule

its own previous decisions [109]. In view of the abuse of the

exercise of power of nolle prosequi by the Attorney-General,

both at the Federal and State levels, the Supreme Court should

overrule itself in State v Ilori and adopt the decisions of the

Court of Appeal where the Court held that the Attorney-

General’s power to enter a nolle prosequi could be questioned

in a court of law [110].

The role of the EFCC in stamping out corruption will be

meaningless if the immunity clause contained in section 308 of

the Constitution of Nigeria, 1999 is not removed. If this

immunity clause is completely removed or removed in

corruption cases, the public office holders concerned will no

longer have legal backing for looting Government treasuries [111]. Prominent Nigerians like Late Yar’Adua [112], David Mark [113] and former Chief Justice of Nigeria, Alfa Belgore

supported the removal of the immunity clause [114].

References

1. Article 6 of The United Nations Convention Against

Corruption requires the establishment of agencies to curb

corruption unless they already exist in some form, either as

preventive anti- corruption bodies or bodies specialised in

combating corruption through law enforcement.

2. It is otherwise known as Due Process which enforces strict

adherence to probity in the award and execution of

Government contracts.

3. Emenyanu A. Nigeria: Bank Lost N28.40 Billion to Fraud

in 2011, says NDIC”. This Day, 17th March, P.7. See also,

Ogunleye, G.A (2012) “Unmanaged Distress Risk”. A

paper presented at the Second Seminar on Economic

Crimes in Nigeria organised by the Central bank of

Nigeria, Securities and Exchange Commission, Abuja

between, 2012, pp.13-18.

4. BBC News Online. Nigerian Leaders “stolen” $380 billion

BBC News online, October 20, 2006,

http://news.bbc.co.uk/2/hi/africa/606923.stm (accessed

March 23, 2012). See also, Oguchi, J. (2006) “Ribadu in

Senate, 31 Governors under Investigation”. This Day,

September 28, P.2

5. Akinola Ajibade. Tackling Money Laundering” The

Nation, 2010, p.31.

6. Adeyemi A. Corruption in Africa: A Case Study of

Nigeria, In Mushanga T.M (ed.) Criminology in Africa.

Rome: McFarland and Co. Publishers, 1992, pp.83-84.

7. Adeyemi A. Economic Crimes in a Developing Society”.

Being a paper presented at the 5th Conference of

Attorneys- General in Nigeria organised by the body of

Attorneys-General, held at Abuja between 11th and

December, 1996.

8. The following trade malpractices are prevalent; import of

fake products, false declaration of goods and smuggling.

9. Ribadu N. Obstacles to Effective Prosecution of Corrupt

Practices and Financial Crimes in Nigeria, being a paper

presented at the 1st Stakeholder Summit on Corrupt

Practice and Financial Crimes in Nigeria organised by the

House of Representatives Committee on Anti-Corruption,

National Ethics and Values at the International Conference

Centre, Trade Fair Complex, Kaduna between, 2004.

10. Quoted by Iyalaye DA. Corruption in the Public Service of

Nigeria; A Nation’s Albatross. Being 3rd Fellows Lecture

of the Nigerian Institute of Advanced Legal Studies,

Lagos, 2008.

11. The authentication was done in accordance with the

provision of section 2(1) of the Authentication Act, Cap. 4,

LFN, 1990

12. Section 1 (6) and (9) of the Act. See also, Salomon v

Salomon (1897) A.C, p.22

13. By the provision of section 2 (a-b) of the Act, Economic

and financial Crimes Laws include the provisions of the

Criminal Code, Penal Code, Banks and Other Financial

Institutions Act, 1996, Miscellaneous Offences Act, The

Failed Bank (Recovery of Debts) and Financial

Malpractices Act, Advance Fee Fraud and Other Related

Offences Act and Money Laundering (Prohibition) Repeal

and Re-enactment Act.

14. For a detailed discussion, see Oguche S. An Appraisal of

the Roles of the EFCC and ICPC in Combating Corruption

and Financial Crimes in Nigeria, University of Jos Law

Journal. 2010; 9(2):74.

15. Ribadu N. Economic and Financial Crimes Commission:

Methods, Procedures and Challenges. A Paper presented at

a workshop on corruption, Economic and Financial Crimes

organized by African Diaspora Initiative, Kaduna, 2003.

16. Alli Y, Ogunmola O. Drama in Bank as EFCC Freezes

Fayose’s Account” The Nation, 2016; 21:1.

17. Idugboe JE, Nwano TC. A Critical Analysis of the

Practice, Procedure and Mechanisms of the Economic and

Financial Crimes Commission (EFCC) in Abdulqadir, I.A.

et.al (eds.) Corruption and National Development:

Proceedings of the 46th Annual Conference of the Nigerian

Association of Law Teachers, 2013, p.108

18. Ikhilae E. EFCC, Dasuki, Obanikoro, Fayose Removed

₦4.6 billion from ONSA Account. The Nation, 2016, p.8

19. Alli Y. I Shared Diezani’s 23 billion Poll Cash Among

North-East States. The Nation, 2016, p.1.

20. Alli Y. EFCC Uncovers How $40m was Transferred to

Jonathan’s Cousin’s Account. The Nation, May 24, p.6.

See also, Alli, Y, (2016) “Alleged ₦36 b Fraud: EFCC

Storms Ex-Governor Turaki’s Abuja Home” The Nation,

2016, p.10

21. Ikhilae E. How Metu’s Firm, 77 Others paid ₦1.4 b for

Fictitious Contracts, The Nation, 2016, p.6

22. Ikhilae E. Ex-Air Chief Umar Arraigned for ₦7.382b

Fraud”. The Nation, 2016, p.7.

23. Ikhilae E. Badeh Bought Abuja Houses for Sons at

₦970m. The Nation, 2016, p.8.

24. All Y. 2.5b Bazaar: EFCC QUIZZES Fani-Kayode Over

₦840m Share, The Nation, 2016, p.10

25. Alabelewe A. $2.1b Armsgate: EFCC Seizes Dasuki’s

General Houses. The Nation, 2016, p.1

26. Adesomoju A. CCT Trial: FG Lines Up Eight Witnesses

Against Saraki, The Punch, Saturday, 6th February, p.3.

See also, Ajani, J. (2016) CCB/CCT/EFCC v Saraki: “A

Case of Many Parties” Sunday Vanguard, April 10, pp.21-

22, Adesomoju, A. (2016) “Saraki Moves to Stop Trial

Again” The Punch, Thursday, April 21, p.2 and Adebayo,

M. (2016) “Saraki Pleads Not Guilty to 16 Fresh Charges”

Daily Sun, 2016, p.6.


20

27. Section 7 (1) (a) and (b) of the Act

28. Kupolati T. Crisis of Constitutional Impeachment of

Governor Fayose as a Case Study, in Olatunbosun, I.A

(ed.) Legal Issues For Contemplating Justice in Nigeria.

Essays in Honour of Hon. M.O. Onalaja. Ile-Ife,

Department of Jurisprudence and Private Law, Faculty of

Law, O.A.U., 2004, P.69

29. The Peoples’ Democratic Party (PDP) has accused

President Buhari of pursuing a selective anti-corruption

agenda, with its chieftains as targets. Mordi, R. (2016) “Is

Buhari’s Anti-Corruption War Selective?” The Nation,

p.33.

30. Ferguson G, Roberts D. Plea Bargaining: Directions for

Canadian Reforms, 52 Canadian Bar Review, P.497 at

501. The EFCC was the first prosecuting body to introduce

plea bargaining with the aim of achieving asset recovery.

This was noticed in some high profile prosecutions where

the accused persons were allowed to enter the plea of

guilty, forfeit part of the asset and sentenced to light

imprisonment. For detailed study, see Akande I.F. et.al

(2013) “The Fight Against Corruption in Nigeria: The

Imperative of Criminal Justice System Reforms”. In

Abdulqadir, I.A. et.al.( eds.) Corruption and National

Development: Proceedings of the 46th Annual Conference

of the Association of Law Teachers, p.3` at 48; Alubo,

A.O. et.al (2013) Plea-Bargain Mechanism in the Judicial

Determination of Corruption Cases: A Critical Inter-

Jurisdictional Assessment” in Abdulqadir, I.A et.al (eds.)

Corruption and National Development: Proceedings of the

46th Annual Conference of the Nigerian Association of

Law Teachers, 1974; p.235.

31. Adesomoju A. CJN Condemns Plea-Bargain, The Punch,

16th November, p.1. Plea bargaining was first observed in

Nigeria in 2000 when the then Speaker of the House of

Representatives, Salisu Buhari Pleaded guilty to the

offence of perjury and forgery and was sentenced to

N2,000.00 fine- C.O.P v Salisu Buhari (2000) FWLR (pt

1) P.164. See also, Odedube, N. and Makinde, F. (2007)

“Plea Bargain is Corruption- Bola Ajibola” The Punch, 5th

August, p.2; Kalu, A.U. (2012) “The Role of Plea

Bargaining in Modern Criminal Law.” Ani, C.C (2012)

“Plea Bargaining: Immunity From Punishment”. A paper

presented at a Roundtable on Plea Bargaining organized by

NIALS at the Supreme Court Complex, Abuja, 2011.

32. Bulus J. Police Pension Fraud: A Chronology of Plea

Bargaining Compromises, 2013. Available online at

http://vanguardngr.com accessed on 27th of March, 2013.

The cases of Tafa Balogun, Cecilia Ibru and Igbinedion

were concluded through the use of plea bargaining with

light sentences.

33. The standard of proof required in criminal trial is “proof

beyond reasonable doubt”. See section 135(1) of the

Evidence Act, Cap. E14, LFN, 2011. See also, the cases of

Ijeoma v. State (1990) 6 NWLR (pt. 158) P.567 and Aruna

v State (1990) 6 NWLR (pt. 155) P.125.

34. Soniyi Tobi, Salami, Katsina-Alu Face-Off Deepens. This

Day, P.2.

35. Ekeinde A. Ex-governor of Nigerian Oil State Escapes

Arrest Reuters, March 5, P.1.

36. In 2011, the EFCC filed new charges against Igbinedion.

But on the 15th of May, 2011, the Federal High Court

dismissed the case, ruling that the new charges would

amount top double jeopardy. See Okala, Z. (2011)

“Federal High Court Discharges Lucky Igbinedion of

Corruption Charges” The Nation, 16th May, P.1. See also,

section 36 (9) of the 1999 Constitution. In Ibori’s case, the

Federal High Court dismissed all the counts against him

without allowing the prosecution to present any of its

evidence at trial. See FRN v Ibori Charge No.

PHC/ASB/IC/09

37. Section 19 (2) (b) and (c) of the Act.

38. Section (3) (2) of the EFCC provides that a member of the

Commission may be removed at anytime if the President is

satisfied that it is not in the interest of the Commission that

such a member should remain in office.

39. Chibueze J. Editorial Opinion, The Nation, Friday, March

16, 2007 under the title “Election or Selection”, 2007.

40. Michael Aondoakaa was Attorney-General and Minister

for Justice in Yar’Adua administration from July, 2007 to

February, 2010.

41. Ribadu made the statement in United Kingdom when he

was testifying against former Governor of Delta State,

James Ibori in a money laundering case on the 25th of

August, 2009. See Human Rights Watch of August, 2011

at P.29

42. Estelle Shirbon. Britain Freezes Assets of Nigerian Ex-

Governor, Reuters, 2011, P.2,

43. Emman Anya, Misikilu Mojeed. Attorney-General’s Letter

sets Ibori Free. The Punch, 4th of October, at P.3. For a

detailed discussion on the Albatross of Ibori, see

Babatunde I.O (2010) “Extradition in International Law;

The Ibori’s Conundrum” University of Ado-Ekiti Law

Journal. 2011; 4:266.

44. Omotoso F. EFCC still a Sleeping Giant, available online

at http://www.nigerianewsworld.com/content/efcc-still-a-

sleeping-giant. Accessed on Thursday 15th of May, 2013.

45. Fadimu S. Commission Arrests Own Operative for

Collecting N45 million Bribe from Military Officers

Under Probe. The Nation Saturday, 2016, P.4

46. Adesomoju A. FG Raises Panel to Probe EFCC, ICPC,

The Punch, 2001, P.2

47. (2000) FWLR (pt. 12) P.2015

48. See also, Tinubu v I.M.B Securities (2001) FWLR (pt.77)

P.1003, Daud, K.A. (2010) “To retain or to Remove? The

Jurisprudence of the Immunity Clause in the 1999

Constitution of the Federal Republic of Nigeria” EBSU

Journal of International Law and Juridical Review, P.380

at 389.

49. Fawehinmi v IGP, Ibid.

50. Daud, K.A Ibid.

51. EFCC v Dariye (2005) NSCC, P.4. See also, AGF v

Atiku(2007) 8 NWLR (pt. 1035) P.117. See further, Ikpeze

N (2013) “Fusion of Anti-Corruption Agencies in Nigeria:

A critical Appraisal” NALT 46th Annual Conference

Proceedings Unilorin 2013 at p.17

52. Adeniran, D. (2010) “CACOL Demands Quick

Dispensation of Justice in the Following cases”.The

Nation, March 28, pages 64-65

53. Ketefe, K. “Alleged N100bn Fraud: EFCC Lists 13

Witnesses Against Bode George” available online at

http://www.nairaland.com/nigeria/topic/59547.0.html/.

Visited on 25/9/2010.

54. Temple, C.V “The Conviction of Chief Bode George

Might as well Be Only Symbolic (Pictorial)” available at


21

http://www.pointblanknews.com/artopn1920.html.

Accessed on 25/9/2010

55. George v FRN (2013) LPELR, P.21895

56. The doctrine of autrofois acquit is in his favour. Under this

doctrine, a previous acquittal is a bar to a subsequent trial

for the same offence

57. If a person can prove malicious prosecution successfully,

he will be entitled to damages. See Kodilinye, G. (1982)

The Nigerian Law of Torts, Ibadan: Spectrum Books

Limited, P.26

58. FRN v Igbinedion. Unreported Suit No.

FHC/EN/CR/10/2008

59. BBC News online (2005) “Nigerian Governor to be

Impeached” November, 25

60. Dulue, M (2007) “Former Nigerian State Governor Freed a

Day After Corruption Conviction” Association Press, July

28, P.2. See also, Alubo A.O. et.al (2013) op.cit pp.259-

260

61. Suit No FHC/ABJ/CR/14/2005: FRN v Balogun. Judgment

delivered on the 22nd of November, 2005

62. Charge No. FHC/L/297c/2009

63. Failure to secure adequate security is an offence

punishable under section 15 of the Failed Bank and

Financial Malpractice in Bank Act, 2004.

64. Akkem, N and Tunde, O. (2010) “Cecilia Ibru Jailed. To

lose N191 bn”.The Tribune Saturday, 9th October, P.1

65. Ibid. Assets forfeited included 94 properties which

comprised of about 22 in Lagos, 2 in Asaba, 2 in Abuja, 1

in Rivers State, 65 in Dubai, 2 in Maryland, USA and 191

different types of shares in unlisted companies in different

banks. See also, Oguche, S. (2010) “An Appraisal of the

Roles of the EFCC and ICPC in Combatting Corruption

and Financial Crimes in Nigeria”. University of Jos Law

Journal, Vol. 9, No.2, P.74.

66. (2006) E.F.C.L.R, P.4

67. Contrary to sections 5(1), 8(b) and 1(3) of the Advance

Fee Fraud, Cap. A6, LFN, 2004

68. Contrary to sections 467(2) and 468 of the Criminal Code,

Cap. 77, LFN, 1990

69. (2006) 2 E.F.C.L.R p.80

70. Contrary to sections 10(6) and 3(19) of the Miscellaneous

Offences Act, 2004. See also, FRN v Inyang (2006) 2

EFCLR, P.164, FRN v Iwveze and Anor. (2006) 1 EFCLR,

P.197, FRN v Ikpe and Anor(2006) 2 EFCLR. P.1

71. Olatunbosun, I.A and Alayinde, Z.O (2010) “Plea

Bargaining: A Mockery of Nigerian Criminal Justice

System” in Ajetombi, D (ed.) Law, Politics and

Development: The Challenges of an Emerging Mega-City.

Ikeja Nigerian Bar Association, P.109, particularly at

P.117.

72. Ibid

73. Ani, C.C (2012) “Plea Bargaining: Immunity From

Punishment” Paper presented at a Roundtable on Plea

Bargaining organised by Nigerian Institute of Advanced

Legal Studies on the 19th of April.

74. Sections 7 (1) and 13 (12) of the EFCC Act

75. Section 2 (1) (b), (c) (ii), (f), (g) and (j) of the Act

76. See section 25 of the Money Laundering (Prohibition) Act,

2011

77. SEC Annual Report and Accounts, 2005.

78. Zero Tolerance (2007) EFCC News Magazine, April

Edition, Vol 1, No.4, P.22

79. Zero Tolerance (2007) EFCC News Nigeria, October

Edition, Vol. 2, No.1, P.36

80. Pauline, C.R (2004) “Advance Fee Scam in Country and

Access Borders”. International Conference paper on Cyber

Crime presented at Australian Institute of Criminology,

Melbourne.

81. Ibid.

82. Ribadu, N (2006) “Nigeria’s Struggle with Corruption”.

Presentation made to the US Congregation House

Committee on International Development, Washington

DC.

83. The Financial Action Task Force on Money Laundering

was set up in Paris in 1989 in response to the mounting

international pressure against money laundering. The body

came up with 40 recommendations. Nigeria was given up

till December, 2002 to comply with the recommendations

or face sanctions. In compliance, Nigeria enacted the

Economic and Financial Crimes Commission Act of 2002

84. Human Rights Watch (2011) “Corruption on Trial? The

Record of Nigeria’s Economic and Financial Crimes

Commission” August edition, P.2.

85. EU’s assistance was part of the $32.2 million project that

was implemented by the United Nations Office on Drugs

and Crime (UNODC)

86. Estelle Shirbon (2007 “Court Convicts Nigerian Over

Stolen Public Funds” Reuters, April 5, P.2

87. Ibukun, Y (2011) “Nigerian Ex-Governor Extradited to

UK Over Allegations of stealing $292 million in State

Funds” Associated Press, April 15, P.15. See generally,

Babatunde, I.O (2010) “Extradition in International Law:

The Ibori Conundrum” UNAD Law Journal, Vol. 4, PP.

266-285 particularly PP.271-273

88. US Department of Justice: Assistant Attorney-General

LannyBruer of the Criminal Division spoke at Franz

Hermann Memorial Lecture at the World Bank on the 25th

of May, 2011

89. Ibid.

90. ibid.

91. Ibid.

92. Ibid.

93. Nyame v FRN (2003) FWLR (pt. 156 P.721

94. Ibid.

95. Obuah, E (2010) “Combating Corruption in a Failed State:

The Nigerian Economic and Financial Crimes

Commission (EFCC)” Journal of Sustainable

Development in Africa, Vol 12, No. 1 at p.45

96. Akije, C. (2005) “Wabara, Osuji and Others Arraigned in

Court” This Day, April 3rd, P.1

97. Obuah, E. Op.CIt at P.45

98. The Egmont Group, with headquarters in Toronto, Canada

has over 106 members. It is an international network of

FIUS that was formed in 1995 to promote the exchange of

intelligence and enhance global co-operation in the fight

against money laundering and terrorist financing.

99. Udombana, N.J (2007) “The Economic and Financial

Crimes Commission Act 2004: Equipping the EFCC for a

More Effective Role in Justice Administration”. In Yusuf,

F.A.O (ed.) Issues in Justice Administration in Nigeria.

Essays in Honour of Honourable Justice S.M.A Belgore.

Lagos; VDG International Limited, P.372

100. Ribadu, N (2007) “Fighting Corruption in Nigeria”.

National Public, Radio Morning Edition, April 4. Shortly


22

after the arrest of James Ibori, Ribadu was abruptly

removed from office as EFCC Chairman in January, 2008,

and consequently, the Police Affairs Commission demoted

him by two ranks and the State Security forcibly removed

him from the graduation ceremony at NIPSS, Kuru. See

also, Eboh, C. (2008) “Nigerian Police Demote Former

Anti-Graft Head” Reuters, August 6, P.1, Obateru, T

“Drama at NIPSS – Ribadu Denied Graduation, Arrested”

Vanguard, November 24 at P.1

101. Agbede, I.O (2003) “ Political Corruption: The Limit of

Law” In Ibidapo-Obe, A. et. Al (eds.) Law, Justice and

Good Governance. Faculty of Law, UNAD, P.233

102. Section 2(a) (ii) of the EFCC Act.

103. Tafa Balogun, former Inspector General of Police was

sentenced to six months imprisonment under Ribadu for

financial crimes allegedly committed at a time when he

was serving as Nigeria’s Chief Law Enforcement Officer.

Also, another former Inspector-General of Police, Mr.

Rufus Ehindero is under investigation by the EFCC for

mismanaging the Police fund at a time he was serving as

Nigeria’s Chief Law Enforcement Officer. Another former

Inspector General of Police Muhammed Abubakar said

that “Nigerian Public has lost even the slightest confidence

in the ability of the Police to do anything good”. See Scott

Baidauff (2012) “Nigeria New Police Chief Vows to

Crack Down on Corruption” Christian Science Monitor,

February, 14, P.1

104. Holt, T. and Graves, D. (2007) “ A Qualitative Analysis of

Advance Fee Fraud Email Schemes” International Journal

of Cyber Crime and Criminology, P.137. See also, Oriola,

T. (2005) “Advance Fee Fraud on the Internet: Nigeria’s

Regulatory Response”. Computer, Law and Security

Review, P.26

105. Human Right Watch interview with Ricky Tarfa in Lagos

on the 22nd of February, 2011.

106. Channels Television News of 15th November, 2013 at 8

P.M

107. Shittu, W. (2012) “Comparative Analysis of the

Jurisprudence of Plea Bargain” available online at

http://www.punchnig,com accessed on 16/8/ 2013

108. (1983) 1SCNLR, P.94

109. Odi v Osafile (1985) 1NWLR (pt1), P.17

110. The Court of Appeal in Ilori v the State declared that the

power of the Attorney –General to enter a nolle prosqui is

subject to section 191(3) of the 1979 Constitution

requiring him to act in the public interest and in the

interest of justice. But the Supreme Court disagreed. See

generally, Sagay, I.E. (1988) Legacy for Posterity: The

Work of the Supreme Court (1980-1988) Lagos: Nigerian

Law Publication Limited, P.44

111. Ijalaye, D.A (2007) “Sovereign Immunity in International

Law: D.S.P Alamieyeseigha Saga” Ikeja Bar Review,

vol.1, P.6. To add salt into an injury, the Nigerian Upper

Legislative Chambers are proposing a bill to further clothe

the legislators with immunity thereby stretching the ambit

of section 308 of the 1999 Constitution beyond the earlier

immunity provided for the President, Vice-Presidents,

Governors and their Deputies in Nigeria. If this is

achieved, the catalytic effect is better imagined than

experienced.

112. Adeniyi, S. (2008) “Yar’Adua backs Immunity Clause

Removal” The Punch, Friday, January 25 at page 7.

113. David Mark “Immunity Clause Must Go” The Punch,

Wednesday, January 30, 2007, P.7

114. Belgore S.M.A (2008) “Rule of Law and Democratic

Governance in Nigeria: Challenges and Prospects” being a

paper delivered at the Pre-Convocation Lecture at the

University of Abuja reported by The Nation of Sunday,

February 10 at P.8.


23


ISSN: 2455-2194, RJIF 5.12



Improve the legal status of the parties in the institute of appeal courts arbitrage of the

Republic of Uzbekistan

Avezov Qosim Safarovich

Teacher, Department of civil procedural and economical procedural, Tashkent state university of law, Uzbekistan

Abstract

In this article the author to control the economic decisions of the court proceedings court of appeal instance, one of its specific

characteristics, in particular, the history of its development and other court instance difference, the legal status of the parties, rights

and obligations associated with the legal and procedural aspects of the study and the relevant national legislation suggestions.

Keywords: court, the economic process, appeal, appeal protest

Introduction

Rights and freedoms, and to guarantee the legal protection of

the human rights violations as a priority of reforms. Under

market economy conditions, the economic relationship

between the participants of the different types of legal relations

and the settlement of disputes that may arise as a result of these

issues of legal regulation of relations in the sphere of our

attention to the first days of independence. Business structures,

different types of enterprises and institutions, in general, the

legal relationships between persons possible specialization of

courts and special courts - courts have been established and

they are assigned to the task of implementation of the

resolution of disputes, access to justice confirmed. In this

regard, the President of the Republic of Uzbekistan in the first

said: "The democratic renewal of the country is one of the most

important step is to strengthen the rule of law, protection of

rights and interests aimed at the gradual democratization and

liberalization of the judicial system. In a word, a law-governed

state and nurturing legal awareness and awareness remains a

crucial task for us” [1].

To appeal court decisions on the history of the emergence and

development of the institution testifies to the appeal likely he

or she is linked with the level of development of the state.

According to E.A. Borisova appeal to every one of the people

from the realities of life [2].

The first phase of the development of the state public

institution in which the people of the court. He said an

independent report of its activity. First, there is no central

government in general, and then the power of the court to

check the activities of their institutions through its weakness.

That is why the court decision is not final form and there is no

appeal.

The authority of the central state of continuous development

and escalation of the court lost its independence, and has

become a kind of state power. It should be noted that, during

the state of development of this appeal were not available, but a

decision on the complaint to the possibility of a correction by

the court, the court's decision in the second, but the decision

adopted by the court, was aimed at the cancellation of this

decision.

Appealed control of the central government to subdue the

people's court, or even in his hierarchy of submission of his

institution, and that the lower courts to the higher level of

strengthening the level of replacing the system of subordination

of the courts could lead to leading.

According to V.R. Topildiev in ancient Rome to make a

complaint on the decisions made by the state court did not,

however, appeal to the decisions of the court-party destinations

on the basis of the decision of the court, the legal effects and

the action in the first mode or such motion or contact [3].

Ancient Roman Empire appealed only came into existence

after the establishment of the empire. Prior to any decision of

the master People's Court following the cancellation.

The highest official of the emperor of the Roman Empire to the

highest state authorities of all types, including the judicial

authorities of both together.

At the end of the third century, the Roman Empire instance the

judicial system and the decisions of the lower courts are able to

make the complaint to the higher court. Please consider a

complaint on appeal (Latin appellare call), the process of

reviewing the decision adopted the appeals process, was

renamed.

According to many publications, from the right of appeal was

in the French [4]. The concept of appeal in France is about to

arise in the XIII century. During this period, an appellate judge

from the personal character was used as an injustice to blame.

The judge was to protect their own weapons in the hands of the

decision. These rules and the protection of their rights with the

weapons in the hands of the judge's fighting was established in

1270 by the appellate courts, determined by the Establishments

de Saint Louis. In 1667 with the production of Ordonans not an

appellate judge on the court decision on the claim. 1579 against

the orders of the king, Henry III in order determined by the

lack of any real decision [5].

In 1796 by the decisions of the courts of first instance and

appeal in this instance it was the first attempt to consider.

However, a lot of time to consider the content of the work

without the establishment of two court decisions, and the courts

of appeal as the second instance and the full year 1810 they

formed.


24

To resolve disputes on November 20, 1991, the first legal

document "On arbitration courts and the procedure for

resolving disputes," the law. Although the law on September 2,

the Supreme Council of the Republic of Uzbekistan and void in

accordance with Decree No. 925-XII, however, to resolve

disputes on a number of important rules. This law is "how to

check the validity of the legal and the decision" to solve

economic disputes in chapter XI of the provisions concerning

the review of the decision. In particular, in accordance with

Article 133 of this law, the decision of how to check the

validity of legal and arbitration board consisting of three judges

examine the validity of the legal and the decision of the

arbitration court. These results indicate that the decision by a

majority of votes. No decision of the investigating body to

control the decisions of the courts of arbitration in the

arbitration court by the chairman or his deputy.

Vice-Chairman of the Court of Arbitration decision may be

reviewed by the chairman.

December 8, 1992, article 111 of the Constitution of the

Republic of Uzbekistan in the commercial courts enshrined in

the rules.

December 14, 2000, the new edition of the Republic of

Uzbekistan "On Courts" as defined in section 3 of the Law

courts jurisdiction, the appeal of Karakalpakstan, Tashkent city

and regional courts is taken. According to Article 52 of this

Act, the Judicial Board of the Supreme Economic Court of the

Republic of Uzbekistan for the first instance and cassation

procedure. In accordance with Article 57 of the Law on "The

Economic Court of the Republic of Karakalpakstan, regional

and Tashkent city court cases within its jurisdiction as a court

of first instance and the appeal procedure."

The basic rules of appeal provided by the Economic Procedure

Code of the Republic of Uzbekistan. Prior "decision" - called

Section 21 SECTION 3, "Appellate proceedings" to work, and

the court of appeal on Article 17. Articles appeal (protest) the

right to appeal (protest) the duration and content of the appeal

(protest) persons who participated in the study, a copy of the

appeal (protest) on the written appeal (protest) in the face,

appeal (protest) to get to work on the ruling, and the appeal

procedure of the case, the court of appeal to cancel or modify

the decision of the powers of principles, rules and regulations,

such as the decision of the appeal instance.

Citizens and legal entities entered into legal force in case of

disagreement with the decision of the court of first instance,

their rights and legitimate interests of the cassation instance,

the ability to protect the direct presence of his lawyer. This, in

turn, timely correct the errors made by the courts of first

instance, the court has become an important guarantee and

avoid the red tape. This situation can be seen in the practice of

the court.

Economic proceeding by the appellate court of the first

instance decision has not come into legal force, and to review

the rulings appeal instance. In addition, the Institute of the

appeal court proceeding is listed as a separate stage. Appeal

considers the complaint to the appellate court of appeal. The

Republic of Uzbekistan "On Courts" in accordance with Article

57 of the Law of the Economic Court of the Republic of

Karakalpakstan, regional and Tashkent city court: matters

within its jurisdiction as a court of first instance and on appeal.

The economic purpose of the appeals process and the rationale

to check the legality of the decisions of the court. Court appeal

judges collegial case on the Rules of the Court of First

Instance. The economic court of appeal or a combination of

several requirements to separate the basis of the claim or to

change the subject, change the size of the claims, filing a

counter-claim, the respondent applied rules on the involvement

of third parties. Appeal proceedings and in the appeal instance

view is based on the nature of the content, you can highlight

the following specific signs:

appealed the court decisions did not come into legal force;

The appellant received the document submitted by the

Economic Court;

The appeal of the second instance and collegial manner;

Refers to the wrong decisions of the court of first instance

and the filing of appeals in this case by a court of law or

practice mode is set to the wrong materials or for

supporting the wrong party who provided incomplete data;

According to the appellate court examines the legal and factual

aspects of the material;

Once in each of the appeal;

The case will be within the powers of the Court of Appeal

can only appeal;

The case study and provided additional evidence;

In addition to the economic court of appeal instance (new)

evidence, if the applicant is not available for the submission

by the court of first instance is based;

Is the subject of proceedings of the court of first instance

cases considered to be the subject of appeal instance [6].

Some of the unique features of the appeal proceedings pursuant

to the principles limited. For example, oral disputes, etc.

Thus, the economic rights of interested parties in the conflict

participants are not only the first instance court, as determined

in accordance with the civil works of civil proceedings, with

some exceptions, are protected by the courts. Consideration of

such an order is the first case to be included in the court of

material and procedural norms of human rights law or the

complexity of the facts of the case, unless the basis for other

reasons as well.

The high courts, the courts had acted within their authority

shall be obliged to check the legal validity of the decisions he

has made.

The Court of Appeal when the court of first instance as you

needs to understand the procedural order. The Court of Appeal

sent to the high courts like to see a new job and must decide on

his own [7].

This place is important to note that, based on the practice court

is the court of appeal with the rules concerning the terms of

reference. Plenum of the Supreme Economic Court of the

Republic of Uzbekistan No. 173 of December 28, 2007, "the

appellate court has examined the application of the Economic

Procedural Code of the Republic of Uzbekistan" according to

the resolution of the complaint (protest) period begins the day

after the date of the decision of the calculation. Appeal

(protest) time is missed; the complaint (protest) can be restored

by the court on the petition of the person. The petition of

appeal (protest), the person who sent the applicant missed the

deadline of the reasons and must be substantiated. The petition

for complaints (protests) can be described in a separate

application or appeal (protest) should be given at the same

time.

Analysis of the positive aspects of the appeals introduction of

this institution to highlight a number of important cases.

First of all, the appeal of the Institute to ensure better


25

implementation of the right to judicial protection, because it

allows you to view the contents of the appeal case for the

second time. In addition, the lack of results of the decision of

the court of first instance, the decision reviewed by an

experienced and qualified judges, the judges participated in the

study to be free of local influences and an important spiritual

significance for society as a whole to apply for and belief in the

power of the law.

Second, the appeal of justice and the implementation of the

Institute to ensure speed and accuracy.

Third, the court of appeal against acts of complaints in the first

instance courts to serve as a line, and in turn, this leads to a

reduction of judicial errors.

You may say the court of appeals, proceedings of these

institutions that guarantee the fairness of court decisions and

ensure the high level of protection of the rights and interests of

the persons concerned. This, in turn, human rights and

freedoms are the highest value of the developed democratic

principles of human rights in the country.

At the same time, the appellate court violated the right

protection (in contrast to the cassation instance) is due to be

revised taking into account the slow implementation of it.

However, the appellate review of the case study participants to

link the new facts, new evidence (of the manner specified

limits), the Court of Appeal of the evidence presented in this

case and other materials analysis and allows you to accept the

result of his decision. In addition, every time the appeals court

does not consider the case is totally different. If you have

complained about the decision of the court completely, and

said part of the appeal.

In general, compared to other types of complaints against the

decisions of the court at the appeal of its positive and negative

aspects. However, other methods of complaints against the

decisions of the court of appeal can not deny the positive

aspects of economic activity, the Institute should be noted that [8].

Categories appeal instance, should be the final step of the

process. Administrative court proceeding on particular

categories of cases appealed in the number of appeals to be

short of international standards and the implementation of the

provisions of this procedure will allow the economy to [9].

Foreign law and legal practice in the decisions made as a result

of the economic process, the rulings provided for in the rules to

apply to the Appeal instance. In particular, the Austrian

legislation provides for appeal proceedings to verify the nature

of the conflict is not a new process and then not be seen for the

first time identified deficiencies. An appeal by the court of first

instance, and it should be given a period of 4 weeks. Entry into

force of the decision of the appellate court complaint and the

execution is suspended until a decision appeal. Austria, in

2007, 19.4% of the case on appeal and most of them are left

unchanged [10].

The Republic of Belarus from January 1, 2014, the general

courts and the courts combined into a single system [11].

According to I. Martynenko that the right of appeal

proceedings following participants of the legal proceedings:

1) Persons participating in the case;

2) Not to participate in the study but not involved in the case,

but accepted the decision of the court on the rights and

obligations of persons and this is a violation of their

legitimate rights and interests of individuals;

3) involved in the case as well as the state share in the

authorized capital of legal entities, as well as the

prosecutor appealed in order to protect the interests of the

state and society;

4) The representative of the person, if he has an attorney to

appeal against the decision of the court has the right to

appeal;

5) The procedural legal succession occurs, the legal heirs of

the persons participating in the case [12].

This is not a case of procedural law, the author of the work and

the persons who have the right to appeal. However, the main

part in the appeal proceedings and place the claimant and the

respondent status, rights and obligations as well as to

participate in this stage of the distinctive features. In particular,

the appeal (protest) the person making the complaint and

attached to other persons participating in the case, these

individuals will send copies of the documents, the person

involved in the case, appeal (protest) received a copy of his

written opinion on the case and a copy of the written opinion

other persons to confirm the evidence of consideration of the

appeal to be sent to the court within days to ensure economic

right, is due to additional evidence that the applicant was not

able to provide the court of first instance in which court to

receive additional evidence, the Court in the first instance the

new requirements will not be accepted and the court of appeal,

will not be considered important.

Civil Procedure Code, the court of appeal is the function of the

provisions of Chapter 37, including persons involved in the

case of Article 337 concerning the consequences of the court

session appearance norm. Economic Procedure Code, this

provision does not exist. That's why 21 of the IPC in

accordance with the purpose of the relevant amendments to the

following chapter.

1651- Article. In this study, the effects of the participating

entities shall appearance

If you come to the hearings that none of the persons

participating in the case, and the case has been properly

notified about the time and place of the information is not

available, the court adjourned the case.

Participating in the case, related to the time and place of the

proceeding, it is not a barrier to individuals not the case.

However, even in such cases, the court failed to do if it finds an

excuse to put the right.

The prosecutor or the attorney fails to appear before the court

ruling, and it is superior prosecutor or the Chamber of

Advocates of the Republic of Uzbekistan, the regional

qualification commission.

Legal literature, the study of the rights and obligations of the

parties in the appeal stage. According to E.A. Treshcheva

business process and appeal on the issue of the parties litigation

stage and the attention to the change in the size of their rights

and obligations. In his opinion, written complaint (appeal) but

not as the rights of the parties as to give a written opinion on

the statement of claim should be mandatory. The appeal court

proceeding allows the parties to strengthen the principle of t

litigation [13].

This is the opinion of the author song. We believe that the

economic protection of the rights of the parties to the

proceedings are free, and the implementation of specific

actions. To protect the economic rights of the parties in the

proceedings of subjective rights, which are expressed in the

statement of claim against the party or deny the claims


26

acknowledge that there is no connection know of. For example,

a claim by the written comments on the request of the court to

settle the sake of his work to the detriment of its legal effect or

be challenged by the plaintiff cannot satisfy the demand. In this

case, the violation of the principle of justice. Therefore, in any

case, the appeal court examined in accordance with the

requirements of the law and the arguments of the same,

regardless of the primary responsibility to respond to him to be

legitimate and fair decision. After all, the economic process

based on the will of the parties the right to protection can be

carried out or performed. In this approach, the written stage of

the appeal of the respondent, the mind must be contrary to the

subjective rights and the fundamental principles of the

economic process, and such a request does not correspond to

the content of the subjective right to protection.

In view of the above, the appeal instance can highlight the

following features: appeal court decisions and have not

submitted the relevant documents adopted by the Economic

Court; the second instance of appeal and collegial manner;

appeal (protest) to transfer refers to the wrong decisions of the

court of first instance, and in this case by a court of law or

practice mode is set to the wrong materials or for supporting

the wrong party who provided incomplete data; According to

the appeals court examines the legal and factual aspects of the

material; once in each of the appeal; The powers of the court of

appeal of the case is only part of the appellant's complaint; the

case study and provided additional evidence; in addition to the

economic court of appeal instance (new) evidence, if the

applicant is not available for the submission by the court of

first instance is based; the circumstances are not the subject of

proceedings of the court of first instance considered the subject

of the appeal instance.

References

1. Islam Karimov. Concept of further deepening democratic

reforms and formation of civil society // Legislative

Chamber of the Oliy Majlis of the Republic of Uzbekistan

and the joint session of the Senate. Tashkent: Uzbekistan,

2010, 24.

2. Borisova EA. Appeals in civil and arbitration process. -

M.: Gorodets, 2008, 12.

3. Topildiev VR. Roman law. Tashkent: new century

generation, 2013, 47.

4. Legal encyclopedic dictionary. Ed M.N. Marchenko, TC.

Welby, publishing house Avenue. 2006, 148, Albegova

ZH Institute of appeal in the arbitration process. Abstract

of a thesis. candidate jurid Sciences-. M. 2009, 14.

5. Baharev PV. Arbitration process. (Teaching method cpl.) -

M.: EOI, 2008, 168, Sherstuk VM. Filing an appeal to the

Court of Arbitration // the Economy and the right. 2006;

10:35.

6. Albegova ZH. Institute of appeal in the arbitration process:

Avtoref. Dis. Cand. jurid. Sciences. М. 2009, 14;

Abushenko DB. Judicial discretion in civil and arbitration

proceedings. - М. norma, 2007, 149.

7. Shoraxmetov Sh. Sh. Economic procedural law of the

Republic of Uzbekistan. Tashkent: Literature Foundation,

2001, 149.

8. Podgrudkova OV. Preparation of the case for trial on the

stage of appellate review of judicial acts in the arbitration

process // Modern problems of legal science and practice:

Proceedings of the All-Russian scientific-practical

conference on, Tambov Univ. House TSU. GR Derzhavin,

2008, 294.

9. Podgrudkova OV. Appeal and review arbitral awards

which have not entered into force. Abstract of dissertation

for the degree of Candidate of Legal Sciences. -Saratov.

2011, 21.

10. Frauenberger-Pfayler W. Section Austria // Check of

judgments in civil proceedings EU and CIS countries.

Under redaction E.A. Borisovoy. 333.

11. The decree On improvement of the judicial system of the

Republic of Belarus” № 6 29 November 2013 y.; // The

National Legal Internet Portal of the Republic of Belarus,

30.11.2013, 1/14651; The decree "On some issues of the

Republic of Belarus the courts" № 529 от 29 November

2013 y. // The National Legal Internet Portal of the

Republic of Belarus, 30.11.2013, 1/14649; The decree "On

some issues of improving the organization of the execution

of judgments and other enforcement documents. 2013;

530.

12. Martynenko IE. Features appeal court acts in the economic

(arbitration) proceedings Republic of Belarus. // Eurasian

advocacy. 2014; 5(12):35.

13. Treshcheva EA. Features of the adversarial principle in

appellate and cassation instances in today's arbitration

process. // Fundamentals of Economics, Management and

Law. 2012; 3:115.


27


ISSN: 2455-2194, RJIF 5.12



The role of the heads of states in modern international contract law

Eraliev Azam Bakhtiyor ogli

Leading specialist, Division for legal Processing of normative legal acts the Centre for Legal informatization under the Ministry of

Justice of the Republic of Uzbekistan

Abstract

The article deals with the place and the role of heads of state in modern international treaty law, the signing and ratification of

international instruments, an analysis of the legislation of the Republic of Uzbekistan in this area.

Keywords: international agreement, the head of the state, ratification

Introduction

In accordance with international law, the legal capacity to enter

into international agreements is an inalienable right of subjects

of international law and an essential element of the

international legal [1].

States from ancient times determined the rights and obligations

through the conclusion of international agreements. Moreover,

as international practice shows that up to the beginning of the

XX century, when the monarchy has maintained its influence

in many countries of the world, international treaties concluded

not on behalf of the state, and on behalf of the head of state -

the monarch. In this regard, it is appropriate to mention the

words of Louis XIV: «The state - that's me!". And indeed, if

you look in the international treaties of the time, some of them

it is clear that subjects of international law then identified with

the heads of states [2].

As a result of the long history of the treaty as a regulator of

international relations developed certain international legal

norms establishing the procedure for concluding, action,

validity, interpretation and termination of international treaties.

Until recently, these rules were generally legal nature. A

positive form they have acquired in the years 1968-1969 in

Vienna, where the conference was held, convened for the

purpose of codification and progressive development of the law

of treaties. In 1986 in Vienna at the International Conference

adopted the Convention on the Law of Treaties between States

and International Organizations or between International

Organizations.

Thus, under an international treaty, as it follows from Article. 2

1969 Vienna Convention and the 1986 Vienna Convention, it is

understood governed by international law an agreement

concluded by States and other subjects of international law in

writing, regardless of whether such an agreement is contained

in one, two or more related instruments and whatever the

specific name.

The concept of an international treaty is also in the legislation

of the Republic of Uzbekistan. The law "On international

treaties of the Republic of Uzbekistan" states that an

international treaty of the Republic of Uzbekistan - is an equal

and voluntary agreement of the republic with one or more

States, international organizations or other subjects of

international law concerning the rights and obligations in the

field of international relations [3].

Contracts can have a variety of names, or be without a title.

Name of agreement (convention, agreement, treaty itself,

charter, charter, covenant, declaration, protocol, etc.) does not

have any legal significance, since the notion of "contract" is a

generic [4].

Legislation states and the rules of international organizations

determine which authorities may on their behalf to enter into

contracts.

In some countries the head of state gives guidance on the

preparation and conduct of negotiations, personally involved in

the most important of them and sign international treaties or

other international legal instruments. His obligation to inform

about the negotiations and signing of acts that do not require

ratification.

By their very nature, international treaties may be different,

and this leads to different attitudes towards them by the head of

state.

For example, in France, a number of contracts are subject to

mandatory ratification by the President. This, as a rule, treaties

affecting the fundamental, important issues for France. French

diplomats to participate in the preparation of such contracts

negotiations, as a rule, receive from the president special

powers [5].

International treaties and agreements relating to less important

individual questions, the President of France is not ratified. He

only informed of their preparation. Oni accepted under the

simplified procedure [6].

In addition, as in many other countries, there are international

treaties that, the President may ratify and approve only with the

consent of Parliament. According to Article 53 of the

Constitution of France, this category includes peace treaties;

trade agreements; treaties or agreements relating to

international organizations; agreements binding on the public

finances; agreements modifying the provisions of the

legislation; contracts of assignment, exchange or territory of

accession. Ratification of these agreements is carried out in the

form of a decision by Parliament, by statute [7].

The ratification process in France heralded with great

solemnity. The text of the international agreement shall be

printed on special forms. Signature President of the Republic

shall be subject to countersign the Prime Minister and Minister

of Foreign Affairs. Contracting Parties shall exchange the texts

of signed agreements.


28

Ratified and published in France the contract takes precedence

over French law [8].

In the UK, under the constitutional arrangements implementing

the foreign policy activities related to the Government led by

the Prime Minister. Although the exercise of this delegated

royal prerogative occurs without the prior approval of

Parliament for the ratification of certain types of international

agreements require the consent of Parliament.

Practice UK parliamentary approval of international

agreements did not exist before the 20-ies of XX century. Since

1924, when the Labour government began to apply the

practice, according to which the Royal Decree Parliament

passed an international treaty or agreement, and if within 21

days no objections are received from him, then the contract is

ratified.

English researcher P. Richards in his "Parliament and Foreign

Policy» («Parliament and Foreign Affairs») distinguishes four

types of international treaties that require parliamentary

consent to ratification:

Treaties amending in domestic law or affect the status of

British taxpayers;

Agreements by virtue of which the right to increase the

Crown;

Contracts, which requires approval by parliament;

Agreements on the territory of change [9].

However, the subject of discussion in parliament is not the

contract itself, and the law on its ratification. As a general rule,

Parliament is powerless to change the terms of the contract and

can approve or reject it.

In the United States, the President holds his signature

instrument of ratification, but the most important international

treaties ratified by the decision of Parliament (or one of the

chambers). The US decision to ratify takes only the upper

house of Congress (Senate) a qualified majority of two-thirds.

It turns out that within the meaning of the provisions laid down

in Section 2 of Article II of the US Constitution, prisoners are

not signed by the president of a contract, since the signing is

only the completion of the preparatory stage, and the text,

officially approved by the Senate as the upper house of the US

Congress. It is noteworthy that the initial draft of the US

Constitution provides for full delegation of authority to

conclude international treaties to the Senate. "Sparked heated

debate on the role of the president, and a number of delegates

suggested consider the chief executive of the Senate only as an

agent to negotiate" [10].

The practice of international treaties the US shows that the

Senate is reluctant to approve the contract. In addition, the

senators may have when discussing the contract signed by the

head of state to make major changes to it. And this, in turn,

puts the president in a dilemma: either does not sign the

instrument of ratification and thus bury the result of difficult

and protracted diplomatic negotiations, or in a hurry to

persuade its partner to accept foreign retroactively amended

and supplemented by the senators of the upper chamber. And

in the first and in the second case, there is the unpredictability

and instability of the element, which among other things can

damage the image of the US President in the eyes of his

counterpart [11].

The powers of the monarch in the Arab world more broadly.

Monarch has the right not only to conduct international

negotiations at the highest level and to sign international

treaties and agreements, and to issue special decrees ratifying

them signed the international treaties that require ratification of

such [12].

However, not all Arab countries, the head of state to sign and

ratify international treaties are implemented so unconditionally.

For example, in Egypt, President of the Republic concludes

international treaties and transmits them to the National

Assembly with the necessary explanations. These treaties have

the force of law after the conclusion, ratification and

publication in accordance with the established procedure.

Treaties of peace, alliance, commerce and navigation and

agreements relating to the change in the territory of the state,

its sovereign rights or entailing use of funds of the state

treasury, not provided by the current budget, subject to

approval by the National Assembly.

The constitutional powers of the President to enter into

international treaties, of course, do not mean that he should do

it in person. However, this right remains with the Heads of

State and, usually, they are using it at the conclusion of

particularly important contracts worth personal participation of

Heads of State.

International agreements entered into by the heads of state

personally, must have the appropriate form. For the affected

States such contracts unconditionally become legally binding.

Preparation of the draft of such contracts is usually involved in

the government or the Ministry of Foreign Affairs.

The norms of national legislation with the development of

historical events in Uzbekistan found their consolidation,

taking into account the primacy of international law. Art. 17 of

the Constitution provide the legal adoption of universally

recognized principles and norms of international law.

Formation of the law of treaties in Uzbekistan is determined

using both international law [13], and the national law of the

Republic of Uzbekistan "On international treaties of the

Republic of Uzbekistan" dated December 22, 1995. For

comparison, the special laws on international treaties are not in

the UK, Belgium, Germany, Sweden, Japan and other

countries.

According to the Law of the Republic of Uzbekistan "On

international treaties of the Republic of Uzbekistan" dated

December 22, 1995, public bodies representing the Republic at

the conclusion of international agreements, are as follows:

President of the Republic of Uzbekistan [14], Oliy Majlis of the

Republic of Uzbekistan [15], The Cabinet of Ministers of the

Republic of Uzbekistan [16], The Ministry of Foreign Affairs of

the Republic of Uzbekistan.

In the legal practice of the Republic of Uzbekistan used several

types of powers: the powers of the President of the Republic of

Uzbekistan, the authority of the Government of the Republic of

Uzbekistan, the authority of the Ministry of Foreign Affairs of

the Republic of Uzbekistan. In each case, depending on the

type of international agreement, the authority issued by the

authorities of the Republic of Uzbekistan, on behalf of which

the contract is concluded.

In accordance with Article 28 of the Law "On International

Treaties of the Republic of Uzbekistan" of 22 December 1995,

the President of the Republic of Uzbekistan in accordance with

the Constitution of the Republic of Uzbekistan ensures

compliance with agreements concluded by the Republic,

agreements and liabilities assumed.

President of the Republic of Uzbekistan as the head of state

does not need special powers under according to 13 Law of the

Republic of Uzbekistan " International treaties of the Republic


29

of Uzbekistan" 1995 year. He represents the Republic of

Uzbekistan in international relations and in accordance with

international law, and the Constitution of the Republic of

Uzbekistan. According to article 93 of Constitution President

of Uzbekistan conduct negotiations and sign international

treaties of the Republic of Uzbekistan without special powers.

According to the Law of the Republic of Uzbekistan «

International treaties of the Republic of Uzbekistan » 22

December 1995 year. art. 7 - Intergovernmental agreements are

concluded at the highest level on behalf of the Republic of

Uzbekistan.

It is a logical continuation of Art. 8 of the Law "On

International Treaties of the Republic of Uzbekistan" dated 22

December 1995. According to which the proposal for the

conclusion of international intergovernmental agreements on

behalf of the Republic of Uzbekistan shall be made to the

President of the Republic of Uzbekistan Ministry of Foreign

Affairs of the Republic of Uzbekistan. Other ministries and

departments are the President of Uzbekistan proposals on

conclusion of international agreements on behalf of the

Republic of Uzbekistan on matters within their competence, in

cooperation with the Ministry of Foreign Affairs of the

Republic of Uzbekistan or in agreement with them.

An important part of the process of ratification of international

agreements is the signing of the instrument of ratification.

According to article 18 of the Law "On International Treaties

of the Republic of Uzbekistan", 1995 instrument of ratification

signed by the President of the Republic of Uzbekistan on the

basis of the Oliy Majlis of the Resolution on the ratification of

an international treaty, which is sealed with his seal and

signature of the Minister of Foreign Affairs of the Republic of

Uzbekistan.

The ratification of an international treaty is a process in which

the rule of international law is approved by the supreme state

power and acts as a necessary step in solving the most

important foreign policy issues, without any outside

interference [17].

The Constitution of Uzbekistan establishes the range of

subjects with the right to propose the conclusion of

international treaties. The President represents the Republic of

Uzbekistan within the country and in international relations,

and is entitled to contractual initiatives in the process of

international law-making. It was he who negotiates and signs

treaties and agreements of the Republic of Uzbekistan, ensure

the observance by the Republic treaties, agreements and

liabilities assumed.

Of particular importance is the enforcement of the obligations

assumed by the Republic of Uzbekistan under international

treaties, and this is within the competence of the President of

the Republic of Uzbekistan. The President, in accordance with

the Basic Law, the exercise and take the necessary measures to

ensure that the international cooperation of Uzbekistan with

other subjects found more effective application on the basis of

the primacy of international law and the subsequent

implementation of those rules and principles in national

legislation. The president is the guarantor of compliance with

the rules of the international treaty on the basis of and pursuant

to the provisions of the Constitution of the Republic of

Uzbekistan.

In general, the introduction into national law of the world legal

experience becomes a leading trend of legal development. The

specific content of the presidency by the Constitution.

According to the Constitution, the President of the Republic of

Uzbekistan fulfils basic function in ensuring international

cooperation between the states on the international arena. Of

particular importance is the enforcement of the obligations

assumed by the Republic of Uzbekistan under international

treaties is included in the competence of the President of the

Republic.

President of Uzbekistan, on the basis of the Basic Law, which

gives him the breadth of international authority, shall take the

necessary measures to ensure that the international cooperation

of the state with other subjects found more effective

application on the basis of the primacy of international law and

the subsequent implementation of those rules and principles of

national law.

All said above leads to the conclusion that the President of

Uzbekistan determines the long-term political and legal basis

for the implementation of contractual and legal obligations, the

nature of the country's interaction with the actors. Activated

part of the legal system of Uzbekistan in the process of

globalization of the domestic law of states and

internationalization, domestication of international law. The

result is a higher level of civilization of the legal regulation in

the country and increase the efficiency of international law [18].

Thus, the state representation in international relations is a

traditional prerogative of the head of state in most countries in

the world. Traditional affiliation executive powers of the sole

head of state are due to the characteristic features of

international relations, which are based, in particular, and on

the confidence of the parties to each other. In the process of

establishing and then maintaining the relationship between the

contracting parties is very important role played by a senior

official, legally representing the State in international relations

[19].

References

1. International law: / N. Т. Blatova. – М. legal literature.

1987, 544, 117.

2. Baskin YY, Feldman D. History of International Law. М.,

1990, 15.

3. Law of the Republic of Uzbekistan 22.12.1995 y. N 172-I

«On international treaties of the Republic of Uzbekistan»,

article 3 // Bulletin of Oliy Majlis of Uzbekistan, 1995, N

12, art. 262.

4. International law. Textbook YM, Kolosov ES,

Krivchikova M. International Relations, 2001, 181.

5. Kayynbaev MB. International legal status of heads of

state. The thesis for the degree of Candidate of Legal

Sciences. Moscow. 2005. Source: www.dissercat.ru.

6. Art. 52. The Constitution of the French Republic on 4

October 1958 (as amended by the Constitutional Law №

60-525 dated 4 June 1960 the Law № 62-1292 dated

November 6, 1962 the Constitutional Law № 63-1327 of

December 30, 1963 g, № 74-904 of October 29, 1974, №

76-527 from June 18, 1976, № 92-554 from June 25, 1992,

№ 93-952 of July 27, 1993, № 93- 1256 of November 25,

1993, № 95-880 dated 4 August 1995) Source - The

Constitution of the Republic of France // Constitution of

the European Union countries / edited by L.A. Okounkov.

- M. Publishing Group INFRA-M - NORMA, 1997, 665-

682.

7. Art. 52. The Constitution of the French Republic on 4

October 1958 (as amended by the Constitutional Law №


30

60-525 dated 4 June 1960 the Law № 62-1292 dated

November 6, 1962 the Constitutional Law № 63-1327 of

December 30, 1963 g, № 74-904 of October 29, 1974, №

76-527 from June 18, 1976, № 92-554 from June 25, 1992,

№ 93-952 of July 27, 1993, № 93- 1256 of November 25,

1993, № 95-880 dated 4 August 1995) Source - The

Constitution of the Republic of France // Constitution of

the European Union countries / edited by L.A. Okounkov.

- M. Publishing Group INFRA-M - NORMA, 1997, 665-

682.

8. Ibid. 674.

9. Richards P. Parliament and Foreign Affairs. London, 1967,

42.

10. Muskie Ed, Rush К. Thompson К. The President, the

Congress and Foreign Policy. N.Y., 1986, 41.

11. Kaynbaev MB. International legal status of heads of state.

The thesis for the degree of Candidate of Legal Sciences.

Moscow. 2005. Source: www.dissercat.ru.

12. Sapronova MA. Arab East: the power and the constitution.

M. Moscow State Institute of International Relations

(University), 2001, 62.

13. These are the basic rules of the United Nations Charter of

1945., Vienna Convention on the Law of Treaties of 23

May 1969., The Vienna Convention on the Law of

Treaties between States and International Organizations or

between International Organizations of 21 May 1986, the

registration and publication of treaties and international

agreements, rules for the conduct of the action in Article

102 of the Charter of the United Nations (UN General

Assembly Resolution). 1946.

14. See. Also Art. 93 to claim 1, 2, 3, 4, 5, 6, 7 of the

Constitution of the Republic of Uzbekistan adopted on 8

December 1992 at the eleventh session of the Supreme

Council of the Republic of Uzbekistan (as amended April

16, 2014.). - T. IPTD Uzbekistan, 2014, 76.

15. See. Also Art. 93 to claim 1, 2, 3, 4, 5, 6, 7 of the

Constitution of the Republic of Uzbekistan adopted on 8

December 1992 at the eleventh session of the Supreme

Council of the Republic of Uzbekistan (as amended April

16, 2014.). - T. IPTD Uzbekistan, 2014, 76.

16. See. Also Art. 98. The Constitution of the Republic of

Uzbekistan adopted on 8 December 1992 at the eleventh

session of the Supreme Council of the Republic of

Uzbekistan (as amended April 16, 2014.). - T. IPTD

Uzbekistan, 2014, 76.

17. Limitation Convention on the International Sale of Goods

Sale of Goods (New York). 1974.

18. Umarahunov IM. international treaty - the legal practice of

the Republic of Uzbekistan. Second Edition, Revised. In

two volumes. Tashkent, 2005; 1:231.

19. Pavlov EY Constitutional and legal framework of the

foreign policy of Russia // Constitutional and legal

framework of foreign policy. - M: ROSSPEN, 2004, 17.


31


ISSN: 2455-2194, RJIF 5.12



International parliamentary cooperation: A historico-political perspective

Nayimov Otabek Mardonovich

Ph.D. Student IR, University of World Economy and Diplomacy Tashkent, Uzbekistan

Abstract

This article analyzes historical and political aspects of the emergence and growth of the global inter-parliamentary cooperation.

The author attempts to cover major historical periods and political preconditions for the rise of ideals of parliamentarism, as well as

the role of international parliamentary institutions in spreading and deepening inter-parliamentary contacts as inseparable part of

contemporary international relations. The special focus is given to the importance of parliament as an instrument of foreign and

international policy and the growing impact of parliamentary diplomacy in addressing political disputes and conflicts between

states.

Keywords: inter-parliamentary cooperation, international parliamentary institutions, the ideals of parliamentarism, democratic

deficit, good governance, parliamentary diplomacy, parliamentary oversight

Introduction

Over the last decades the unprecedented rise of international

parliamentary institutions and the development of international

parliamentary cooperation have been the most enduring

characteristics of international politics. Initially, the

international parliamentary cooperation led by burgeoning

parliamentary structures aimed at promoting dialogue and

peaceful settlement of conflicts between different parties thus

maintaining regional peace. Today, however parliamentary

expansion in global affairs range from monitoring international

activities of states’ and international organizations to

sustainable development, human rights, democracy and

addressing global problems like combating terrorism, drug

trafficking, the proliferation of WMD, environmental issues

and etc. Given the fact that the role of parliaments and

parliamentary institutions are growing in global decision-

making the author attempts to conduct a comprehensive

research on the historical roots for the rise of legislatures as a

foreign and international actor as well as to better understand

the political and social preconditions that made these changes

possible.

The rise of global inter-parliamentary cooperation is the major

hallmark of the 20th century international development. Its

unique growth is largely seen as the result of the

institutionalization of ideals on good global governance and

better democratic representation on the one hand, and the rapid

development of international relations coupled with the

deepening globalization processes on the other. Historically,

parliaments had no or limited impact on foreign policy; as

internal state bodies they were largely occupied with

representative and legislative functions. Today, however,

parliamentary factor is increasingly visible in foreign and

international affairs highlighting the major change in its power

and prestige. This article is an attempt to study the historical

and political aspects of the phenomenal rise of global inter-

parliamentary cooperation as well as the prospects of

international system led by parliaments.

Historical perspective The global parliamentary cooperation is the most dynamically

developing aspect of contemporary international relations. As a

relatively new phenomenon, the parliamentary involvement in

international affairs began at the end of the 19th and the

beginning of the 20th century. The gradual emergence and

growth of so called ‘international parliamentary institutions1

with regional and global agendas has further widened the

geography of worldwide parliamentary contacts. Although, few

international parliamentary institutions had been working

before the World War II (for example Nordic IPU (1907),

Empire Parliamentary Association (1911)), it’s worth noting

that their rise to prominence had occurred in two distinctive

historical crossroads. The growing involvement of parliament

in international affairs had resulted in the context of global

democratic awakening theorized by S. Huntington, a prominent

American scholar, in his famous “The Third Wave”. Given the

significance of these periods, it is important to understand the

expansion of parliamentary authorities over foreign and

international affairs from a historical point of view.

I. Although some forms of parliamentary cooperation emerged

at the end of 19th century in Europe, the devastating world wars

in the region had extremely hindered its progress. Later, the

post Second World War period in Europe has greatly

transformed the ways public opinion has viewed the conduct of

foreign policy and international decision-making. As fairly

observed by Z. Sabic, in the years after the war, ‘the public

demand for a better transparency of decision-making in

international politics came to the forefront of political debates

in Europe’ [12, p.260]. The rise of widespread public

skepticism and mistrust was a result of disastrous wars that

ruined millions of lives in Europe and beyond. According to A.

1 It is worth to note that there are definitional challenges in identifying what

actually international parliamentary institutions are and how these institutions

should be categorized. The terms like “association” or “assembly” is also appear in some researches. However, over the last years, especially in annual

reports of the Inter-Parliamentary Union, and in the works of several noted

parliamentary scholars (C. Kissling, R. Cutler, Z.Sabic and etc.) the term of “international parliamentary institution” is widely used.


32

Kreppel ‘…in the immediate post-war period in Europe many

‘federalist’ movements emerged, with the goal of creating

common bonds between countries which would mitigate the

return of nationalism and prevent another war [7, p.53]. Not

surprisingly, this popular public feeling is well-captured in the

works of founding fathers of the European Union, who went

even further by calling close regional integration so to “make

war not only unthinkable but materially impossible”2.

It is therefore the growing need for a democratic and

accountable international system with active citizen

participation has led to the burgeoning of international

parliamentary institutions with regional and global relevance.

With relatively limited power and resources, they aimed at

challenging ‘democratic deficit’ in international politics,

ruthlessly exposed in the course of events that led to the world

wars. Few examples include Parliamentary Assembly of the

Council of Europe (1949), European Parliament (1958), NATO

PA (1955), Benelux Parliament (1955), PARLATINO (1964),

Arab Inter-parliamentary Union (1974), African Parliamentary

Union (1976), ASEAN Inter-parliamentary Assembly (1977)

and etc. Several major historical events greatly contributed to

the rise of parliament as an international actor. If it was the

growing public consciousness of masses in Europe, coupled

with a deep-rooted clamor for democratic international rule that

has precipitated the emergence of International Parliamentary

Institutions, the crumbling of colonial domination has

accelerated the same processes in large areas of Asia, Africa

and Latin America.

As a result, several parliamentary organizations emerged

within both regional and international organizations eager to

question traditional dominance of states (executives) in

international affairs. The phenomenal rise of parliament with

international ambitions have even led some scholars refer to

the ‘ideologically divided Cold War years of 20th century as a

period of “parliamentarization” of international relations, or

parliamentarization of politics’ given the growth of ‘public’

and ‘parliamentary’ diplomacy3.

II. The end of the 1980s and the beginning of 1990s marked a

unique period of transition in world history with the collapse of

the communism and the dissolution of the Soviet Union. The

end of the Cold War heralded to a new era in human progress,

strengthening the feelings of inter-dependence of human

destiny, mutual understanding and a sense of shared

responsibility for the common future. The unprecedented

changes that had followed the breakup of the Soviet Union

were truly historic, making, as rightly noted, the ‘globalization

and democratization’ two dominant themes of human

development [4].

In such a favorable historical context that characterizes the

post-Cold war years, the world has witnessed the mushrooming

of international parliamentary institutions, particularly active in

foreign policy and international affairs. Over 100 informal or

formal International Parliamentary Institutions can be reported

2 It was the primary goal of the Schuman Declaration, which called for sharing strategic resources in order to avert future wars between once

conventional rivals such as Germany and France. As we know, the Schuman

Declaration has later led to the creation of the European Coal and Steel Community (ECSC), the cornerstone of the EU. 3Such claims were made by Z.Sabic, in his abovementioned work as well as

by A. Malamud and S.Stavridis in their following research: Parliaments and Parliamentarians as International Actors.//Ashgate Research Companion. –P.

103. Available at: http://apps.eui.eu/Personal/Researchers/malamud/Ashgate-

Malamud-Stavridis.pdf

in the world today, not to mention their subsidiary

organizations [6, p.10]. Ever since, global parliamentary

movement has been calling for greater citizen participation in

decision-making, and fervently advocating to create a kind of

international system which will be marked with broad

representativeness and more responsibility. The unique growth

of parliamentary institutions has accelerated world-wide

parliamentary contacts; parliamentary resources are

increasingly being considered as an alternative force for

maintaining peace and security, promoting mutual

understanding through dialogue, finding negotiated settlement

in today’s conflicts. Parliamentarians are also striving to build

an international environment in which peaceful international

cooperation would be possible. Several parliamentary

structures like the British-Irish Parliamentary Assembly

(1990), Baltic Assembly (1991), Central American Parliament

(1991), OSCE Parliamentary Assembly (1992), CIS

Parliamentary Assembly (1992), Belarus-Russian

Parliamentary Council (1997), Parliamentary Union of the

Organization for Islamic Cooperation (1999), Asian

Parliamentary Association for Peace (1999) appeared in this

period of time.

The growth of international parliamentary institutions has

significantly changed the nature of international cooperation by

bringing peoples’ voice ever closer to international decision-

making. ‘Nowadays, inter-parliamentary contacts are having

great impact on the dynamics of contemporary international

relations; its forms, substance and perspectives [3, p.22].

Gradually, ever-expanding parliamentary contacts have

become an inseparable feature of contemporary international

relations. As an actor of international decision-making,

parliament is widely viewed as a trustworthy instrument of

foreign policy in mitigating conflicts, preventing wars as well

as in shaping more constructive environment for peaceful

cooperation.

The parliamentary dimension of international institutions has

increased with the active involvement of parliaments in

international affairs. This tendency has later led to the creation

of parliamentary assemblies within international organizations

aiming to conduct parliamentary oversight of the activities of

these institutions. The parliamentary assembly of the OSCE,

NATO PA can be a good example to support this claim. This

phenomenon is also known as the “parliamentarization of

international organizations”. Today, the activities and

democratic credentials of any prestigious organization are often

criticized if it does not have parliamentary body.

Parliament as an international actor

The rise of parliamentary involvement in foreign policy has

gradually transformed the nature of international cooperation,

its forms and mechanisms. Today, we witness the

institutionalization of global aspirations for greater

parliamentary participation in international political processes,

demonstrating the rising public demand to hold global

institutions accountable by universal democratic standards. In

the context of so called “global political awakening”4, the

4In his widely acclaimed work titled as the “Strategic Vision: America and

the Crises of Global Power” (2013), Zbigniew Brzezinski argues that the world is witnessing ‘Global Public Awakening’, a unique historical and

social phenomenon, as a result of rapid globalization of human lives and the

remarkable development of visual means of communications. According to

http://apps.eui.eu/Personal/Researchers/malamud/Ashgate-Malamud-Stavridis.pdf

http://apps.eui.eu/Personal/Researchers/malamud/Ashgate-Malamud-Stavridis.pdf


33

responsibilities of international parliamentarians to meet

peoples’ expectations are widening. The newly-acquired global

significance urging parliamentarians pursue their goals more

assertively and introduce certain mechanisms of ‘checks and

balances’ to oversee the work of influential international

actors. Regarded as an embodiment of democracy, parliament

can rightly be qualified an international watchdog for better

global administration. It is therefore, the “parliamentary

dimension” is becoming more evident in the activities of

international organizations such as United Nations, IMF, WTO,

World Bank, OSCE and etc. More and more, parliamentarians,

along with omnipresent civil society institutions, are trying to

fill the much-talked about topic of democratic deficit in global

affairs by overseeing the democratic nature of international

system and also monitoring the democratic legitimacy of inter-

governmental institutions.

Parliamentary scholars S.Stavridis and A.Malamud made a

strong case for the link between democracy and parliamentary

involvement in foreign affairs. They argue that the democratic

countries have expanded the ‘reach’ of their parliaments in

world affairs [8, p.103]. Some other scholars stress that “the

borderline between domestic and international policies is

blurred” and that “…the days when foreign policy, and more

specifically trade policy was the exclusive domain of the

executive branch are over” [11]. Norwegian scholar Gram-

Skjoldager stresses a similar complementary idea arguing that,

“the intertwinement between international and domestic

policies implies that the role of domestic actors becomes more

important in relation to international affairs”5.

It is worth noting that the expansion of parliamentary influence

over foreign and international affairs has significantly widened

the global responsibilities of parliamentarians’. As a foreign

policy instrument, the main functions and responsibilities of

parliaments’ are as following:

To scrutinize foreign policy activities of states

(executives);

To improve the country’s international standing and image

abroad;

To promote representative democracy and the ideals of

parliamentarism world-wide;

To improve the representation of peoples’ interests in an

international arena;

To monitor the legitimacy of decisions taken by

international organizations as well as the overall activities

of international and inter-governmental institutions;

To promote more democratic, transparent and

representative decision-making in International Relations;

To foster a world-wide parliamentary dialogue for

peaceful cooperation and so on and so forth…

Moreover, we’ve all the rights to emphasize that the regional

and international parliamentary institutions are crucial as think

tanks, generating knowledge, advocacy and policy expertise

and thus providing better alternative solutions for addressing

world’s major challenges. The work of Inter-Parliamentary

his theory, the populations of the world today are more politically activated and socially conscious than at any time in human history. 5 For a further overview please see: Shaping and controlling foreign policy.

Parliamentary diplomacy and oversight and the role of the European Parliament.

http://www.europarl.europa.eu/RegData/etudes/STUD/2015/549045/EXPO_

STU(2015)549045_EN.pdf

Union (IPU) and other parliamentary structures are cases in

point. Particularly, the IPU has been consistent in strengthening

parliaments around the world in order to promote

representative democracy and foster global parliamentary

dialogue by regularly identifying major problems and

challenges facing modern legislators. The works of

international parliamentarians can well be improved by the

analytical research provided by scholars and handful of experts

working within the parliamentary bodies6.

Moreover, parliament can also be of great significance in the

foreign policy area with its following virtues:

1. Parliamentary cooperation can be useful instrument of

international understanding and therefore, often

considered to be effective in mitigating conflicts and

resolving disputes. Bringing ‘parliamentary spirit’ to IR

implies the use of soft power and diplomatic means rather

than to employ military ones;

2. Public opinion traditionally favors parliament as an

important institution in ‘conveying public concerns’ both

nationally and internationally and hence benefits

substantial moral support;

3. Unlike executives, legislatures are viewed as being more

reliable and trust-worthy instrument of public diplomacy.

To date, given the accelerating pace of globalization, the

world-wide parliamentary contacts have become even more

intense with the parliamentary factor increasingly visible in

various areas of international life. Suffice to say, the deepening

cooperation of parliamentarians with the United Nations in

matters of global concern7. Not surprisingly, the number of

people holding the belief that the time is ripe to create a World

Parliament or the Parliamentary Assembly of the United

Nations is growing in academic and particularly, in civil

society communities8. Although it seems a distant prospect for

the current political environment, one definitely should not

underestimate the power of the mobilized, global civil society.

The only fact that the European Union and the European

Parliament have both emerged from the ashes of war-torn

Europe, (where such developments were widely seen to be

unrealistic) can further support the cause of the

parliamentarians striving to establish a parliamentary body of

the United Nations.

Parliamentary diplomacy

The extension of parliamentary authorities over foreign and

international affairs led to the emergence of a new field called

‘parliamentary diplomacy’. Since parliament has traditionally

been a domestic actor with legislative and representative

6 The European Parliamentary Research Service (EPRS) is a case in point.

The EPRS has been providing the European Parliament with in-depth analyses and alternative policy options in order to improve the efficiency of

European legislators. 7 By recognizing the growing impact of parliament, the United Nations has explicitly called national and international parliamentarians for cooperation

in meeting the objectives of the Millennium Development Goals (MDGs) and

later Sustainable Development Goals (SDGs). For example, the paragraph 30 of the UN Millennium Declaration emphasizes strengthening further

cooperation with parliaments through their world organization, the Inter-

Parliamentary Union, in various fields, including peace and security, economic and social development, international law and human rights,

democracy and gender issues. To find more information please refer to the

UN Millennium Declaration. 8 It is fair to mention the role of the Campaign for the Establishment of a UN

Parliamentary Assembly (CEUNPA), which is a network of civil society

groups and parliamentarians around the world dedicated to creating UNPA.

http://www.europarl.europa.eu/RegData/etudes/STUD/2015/549045/EXPO_STU(2015)549045_EN.pdf

http://www.europarl.europa.eu/RegData/etudes/STUD/2015/549045/EXPO_STU(2015)549045_EN.pdf


34

functions, the relatively new role of parliament as a foreign

policy instrument is yet to be properly studied. A precise

definition of what exactly consists of parliamentary diplomacy

is also lacking.

However, the academic interest in the phenomenon of

parliamentary diplomacy is growing over the recent years.

According to Dutch legislative scholars, the term parliamentary

diplomacy is used ‘to describe the wide range of international

activities undertaken by members of parliament in order to

increase mutual understanding between countries, to better

conduct government scrutiny, to democratically represent their

people abroad and to increase the democratic legitimacy of

inter-governmental institutions’ [14, p.93-99]. On the other

hand, the Portal for Parliamentary Development defines

parliamentary diplomacy as ‘the means by which two or more

parliaments conduct an ongoing dialogue with regard to key

international issues through institutionally or individually’9.

While accepting the absence of a standard definition, R. Cutler

argues that ‘parliamentary diplomacy represents an important

middle ground between the traditional level of interstate

diplomacy and the new level of transnational co-operation

amongst grassroots non-governmental organizations (NGOs)

[1, p.82-83]. By summarizing many of its imperfect definitions

G. Hamilton laconically referred to parliamentary diplomacy as

‘diplomacy with a democratic mandate [5].

Nevertheless, we can stress that the existing definitional

confusions will dissipate over time once the role of parliament

as a foreign and international actor becomes more apparent.

Presumably, this problem can also be attributed to distinctively

evolving features of parliamentary diplomacy as a new field of

political discipline.

Known as the world organization of parliaments, the Inter-

Parliamentary Union (IPU) is leading global efforts to promote

international parliamentary cooperation, representative

democracy and parliamentary diplomacy, and hence

challenging democratic deficit and the executive dominance in

world politics. In a similar way, parliamentary involvement is

also deepening in such areas like sustainable development,

trade, tackling climate change and demographical issues. In

order to stimulate the rising parliamentary contribution to

international development in general, and the role of the IPU in

particular, the United Nations has granted a permanent

observer status to the IPU (2002) and even honored it branding

as a ‘unique parliamentary counterpart of the United Nations [2].

In a current international system crowded with state and non-

state actors, the parliament’s profile as an embodiment of

democracy will continue to grow. Even now, parliaments are

exerting significant influence over global decision making

through national, regional and international parliamentary

institutions. According to George Noulas, three major factors

are important for a parliament to play a wider role in foreign

affairs. They are the ‘historical origins’ of the country, its

‘political system’ and the overall ‘position in the international

arena [10]. In a globalised world, one might expect further

expansion of parliamentary powers, civil society, and other

non-state entities in creating, as they wish, a more

representative, democratically-governed and accountable

international system.

9 Parliamentary diplomacy, Portal for Parliamentary Development. Available

at: http://www.agora-parl.org/

Criticism

The end of the Cold War has sparked somewhat euphoric

feelings about the formation of a new world order with the

international institutions in alliance with global civil society at

its core. Unfortunately, these hopes have later waned as the

world encountered different kinds of problems and challenges.

The President of the New America Foundation, A. Slaughter

was right when she famously quipped that ‘the new world

order led by the United Nations guaranteeing international

peace and security is a chimera’ [13]. Her criticism is not an

isolated one. Several other scholars have traditionally been

very skeptical of the role of international institutions and have

often questioned the actual impact of parliaments in

international politics10. For example, a distinguished American

political realist J. Mearsheimer claims that ‘international

organizations (institutions) have minimal influence on state

behavior and thus hold little promise for promoting stability in

the post-Cold War world’ [9, p.7-8].

Those scholars who critically examine the role of

parliamentarians as foreign policy actors point to such major

flaws as the institutional deficiencies of parliamentary

assemblies, implementation capabilities and also the reluctance

of states to endow parliaments with substantial powers [12,

p.260-262]. The critiques of parliament also refer to some

common weaknesses of legislatures such as, the lack of

coherent diplomatic agenda, institutional consistence, and more

crucially, the lack of resources and power. But particularly,

they are highly skeptical of parliaments’ real ability to

challenge state diplomacy or influence over international

decision making. For that reason, we sometimes witness such

cynical comments calling parliamentary diplomacy as being

‘nothing more than parliamentary tourism’.

Conclusion

The so called global political awakening, the rapid progress of

the means of information, the Internet, sustained social and

economic development have further increased the nature of

international politics. In this regard, the development of

international parliamentary cooperation embodies global

aspirations towards more democratic, free and fair international

system. The rise of parliament as a foreign and international

actor should be considered as a result of overall human

progress, the rapid institutionalization of universal ideals and

globalization. Nowadays, the parliamentary dimension is

becoming more visible in the daily activities of many

international organizations and not surprisingly, these

organizations are aware of the growing legislative scrutiny

directed at their world-wide activities. The times when states

acted solely and hence international affairs were perceived to

be exclusive executive prerogative have long gone to history.

With significant public support for being a source of legitimacy

and for the representative nature, the global parliamentarians

are more vigorously pursuing their ambitious goals of building

more open, transparent and democratic world order.

It’s worth noting that the international organizations, civil

society institutions and global parliamentarians are at the

forefront of building better, responsive and more democratic

10 The representatives of Political Realism are often critical of parliament’s foreign policy role. Political realists do not believe in a world order ruled by

international organizations or parliamentarians. They firmly hold a view that

executives (states) are the only important actors in international politics.

http://www.agora-parl.org/


35

world order. Therefore, parliamentary cooperation on both

regional and international level is deepening by giving

dynamism to the development of contemporary international

relations. In our globalised, deeply inter-connected world, the

rise of global parliamentary contacts as well as the active

involvement of parliamentarians in foreign affairs will further

grow by fostering mutual understanding between nations,

cross-border solidarity, political dialogue and religious and

cultural tolerance. That’s why, the future activities of

parliamentarians will be an important test for parliaments’

claim as a force for good and also building an accountable,

democratic and open international order.

References

1. Cutler R. The OSCE’s Parliamentary Diplomacy in

Central Asia and the South Caucasus in Comparative

Perspective.// Studia Diplomatica, 2006, 2.

2. Declaration of the Second World Conference of Speakers

of Parliaments organized by the IPU, held in New-York in

August-September, 2000. Available at:

http://www.ipu.org/splz-e/sp-conf05/declaration.pdf

3. Djuraev QA. Parlamentlararo aloqalarning zamonaviy

xalqaro munosabatlar tizimida tutgan

o’rni.//O’zbekistonda parlament institutining rivoji va

istiqbollari: siyosiy, huquqiy va tashkiliy jihatlari. (The

role of Inter-Parliamentary Cooperation in Contemporary

International Relations.//Political, Legal and

Organizational Aspects of the Development of Parliament

in Uzbekistan). –Tashkent. 2010.

4. Falk R, Strauss A. Bridging the Globalization Gap:

Toward Global Parliament//Foreign Affairs, 2001.

5. Hamilton GJ. Secretary-General of the Senate of the

Kingdom of Netherlands. Parliamentary diplomacy:

diplomacy with a democratic mandate. The speech was

given at the conference of the Association of Secretaries-

General of Parliaments, Quebec, 2012.

6. Kissling C. The Legal and Political Status of International

Parliamentary Institutions. Published by Committee for a

Democratic UN. Berlin, Germany. 2011. Available at:

http://www.kdun.org/resources/2011ipis_en.pdf.

7. Kreppel A. The European Parliament and Supranational

Party System. A Study in Institutional Development.

Cambridge University Press. 2004.

8. Malamud A, Stavridis S. Parliaments and Parliamentarians

as International Actors.//Ashgate Research Companion.

103. Available at:

http://apps.eui.eu/Personal/Researchers/malamud/Ashgate-

Malamud-Stavridis.pdf.

9. Mearsheimer JJ. The False Promise of International

Institutions. //International Security, 1994/95; 19:3.

10. Noulas G. The Role of Parliamentary Diplomacy in

Foreign Policy.// Foreign Policy Journal. 2011.

11. Rommetvedt H. The Parliamentary Dimension of the

WTO. International Research Institute of Stavanger (IRIS),

Norway.

12. Sabic Z. Building Democratic and Responsible Global

Governance: The Role of International Parliamentary

Institutions//Parliamentary Affairs, Oxford University

Press. 2008; 61:2.

13. Slaughter AM. The Real New World Order.// Foreign

Affairs Magazine. 1997.

14. Weisglas WF, Gonnie B. Parliamentary Diplomacy. //The

Hague Journal of Diplomacy. 2007, 2.


36

International Journal of Law ISSN: 2455-2194, RJIF 5.12 www.lawresearchjournal.com Volume 2; Issue 6; November 2016; Page No. 36-38

Interim measures (for example, civil cases) Esanova Zamira Normuratovna

Doctor of Law, Tashkent State University of Law, Uzbekistan

Abstract In this article it is described the measures on securing of claim (on the example of civil cases), the foundation for the securing of claim. As well as it is analysed the measures on securing claim, consideration of an application for interim relief, consequences of appeal a complaint or appeal against a ruling on securing the claim, research of theoretical, practical and scientific aspects of this institution. Keywords: Grounds for action, measures to ensure the claim, consideration of an application for interim relief, cancellation of securing a claim

Introduction In recent years, in the Republic of Uzbekistan in a phased implementation of the judicial reform is a priority to ensure equality of substantive and procedural rights and interests of the parties in the courts in the resolution of disputes and the achievement of rendering legal, grounded and just decision of the court on the case. Full provision of the rights and legitimate interests of the persons who come to the court, the completion of the execution of judgments, storage assets having material value, which are the subject of dispute, goals and actions to participate in full actors in the proceedings in the court session is carried out by Institute for securing the claim in civil procedure law. Chapter 24 (Articles 248-258) of the Civil Procedure Code of the Republic of Uzbekistan devoted to the institution to secure the claim. According to this, under the provision of the claim refers to the application of measures provided for by law in respect of the defendant in preparing the case for trial or trial, on the initiative of the court or the parties involved in the case on the facts of the case to ensure the execution of the decision. Ensuring action is allowed not only in the proceedings in the court, but also in the course of action and it is provided to enforce. Secured claim seeking enforcement (prevention of the destruction of the object of the claim, complexity of execution, saving the possibility of execution, etc.) the decision. Securing a claim - it is considered to safeguard the rights and interests of citizens and legal persons, which is enshrined not only in the law of civil procedure, and it is enshrined in the norms of the criminal procedure law. Ensuring action - aims to redress and the full restoration of the violated property rights of citizens and legal entities as a result of criminal acts or civil legal disputes. Civil Procedural Law does not provide for securing the future of the claim, it is applied only after the initiation of civil proceedings. Measures to ensure the claim can also be used in the course of the preliminary investigation on the basis of the criminal procedure law. According to the analysis of the judicial practice, to ensure that

a claim for the award of the measures permitted in litigation matters, and helps to complete the claim. Paragraph 12 of Resolution of the Plenum of the Supreme Court of the Republic of Uzbekistan "On application by the courts of some rules of civil procedure law," courts should bear in mind that stated in Art. 249 Code of Civil Procedure of the Republic of Uzbekistan interim measures apply if their failure may make it difficult or impossible to enforce court decisions, both in the process of preparing the case for trial, and in consideration of the case. According to the theoretical rules of civil procedure, to ensure the claim is a separate institution is carried out mainly with a view to resolving any disputes between the parties of action proceedings, enforcement of judgments on the stated requirements and secure. At this time, in the civil courts [1] in cases of property division, debt collection makes the determination "of the seizure of property", in cases of cancellation or annulment of decisions on residential areas, land plots - a definition of "the suspension of construction", "on the demolition of illegal buildings," in cases of recognition author of the work - the definition of "suspension of publication of the work" for the various categories of civil cases - the definition of "prohibiting the defendant leaving the territory of the Republic of Uzbekistan", "suspension of the defendant's actions that led to the dispute", on this basis, to ensure the immediate implementation of these definitions, they sent respectively to the judicial departments, notaries, police, border guards and the national security service. According to the content of Article 248 of the CPC of Uzbekistan foundation to ensure the claim can be divided into two forms: the material foundations for the claim and procedural foundations of the claim. The material foundations of security for a claim related to the emergence of the need for action, on the basis of pre-supposed that the execution of court decisions directly on the case is complicated or is impossible. Procedural basics of security for the claim as provided for in the measures implemented and provided at the initiative of the court or the parties involved in the case (Article 33 of the Civil Procedural Code of Uzbekistan). In Article 249 of the CPC of Uzbekistan stipulates measures to


37

secure the claim, according to which measures to secure the claim are the following: 1) seizure of property or sums of money belonging to the

defendant and held by him or another person; 2) prohibiting the defendant from performing certain

activities; 3) the prohibition of other persons to transfer property to the

defendant or to carry out in relation to its other obligations; 4) suspension of the sale of property in the case of a claim for

the release of his arrest; 5) The suspension of recovery under the executive document,

contested by the debtor in court if such a challenge is permitted by law.

According to the analysis of the judicial practice and statistics for 2015, the courts civil cases took 20.3 percent of the material nature of the case, and only in respect of 15 per cent of these cases, interim measures have been taken. In the production of civil cases, mostly, measures have been taken to ensure the claim, as the seizure of property, car and housing, as well as the application of the prohibition to travel abroad in respect of the defendant in cases alimony. This means the full protection of rights and legitimate interests of citizens and legal entities, as well as the restoration of property rights and strict enforcement of its judgments. Legislation specifies the cases in which no measures are taken to secure the claim. Securing a claim by seizure of wages, income, pensions and scholarships, in addition to claims for alimony, compensation for damage caused by injury or other impairment of health, as well as the death of the breadwinner, for damages caused by the theft of another's property is not allowed. Where necessary, the court can be applied to several types of maintenance claims so that their total amount does not exceed the price of the claim. The above measures, in terms of content, are used against the defendant. In this sense the goal of action advisable characterized as follows: At first, maintenance of the claim is brought to the end of

the aims and objectives of action for handling citizens in court;

Secondly, it protects the rights and interests of the plaintiff; Third, it is the means of application of measures stipulated

by law substantive and procedural coercion against the defendant is not in force at the relevant requirements;

Fourth, it serves to strengthen the existing procedure in order of the court.

According to the Civil Procedure Code of the Republic of Uzbekistan the application for interim relief allowed by the judge (court), considering the case, the same day without notifying the defendant and other persons involved in the case. Definition for interim relief is to be executed immediately following the procedure established for the execution of the judgment. As explained in the resolution of the Plenum of the Supreme Court of the Republic of Uzbekistan "On decisions in civil cases of first instance court" ruling on securing the claim belongs to the category definitions, submitted as a separate document. Article 253 of CPC of Uzbekistan establishes liability for failure to comply with measures to ensure the claim, according to which in case of violation of these prohibitions guilty persons are, by definition, the court fined five times the

minimum wage. The plaintiff on the general basis entitled to recover from the loss of these individuals caused by the failure of the court for interim measures. Measures to ensure the claim can be cancelled by the court considering the case. In the event of a failure in the lawsuit claim maintenance measures will remain until the court decision comes into force. However, the court may at the same time with the decision or after the decision to make a determination on the abolition of security for the claim. On determination on issues of private complaint or lawsuit brought by a private protest may be filed. If the definition for interim relief was made without notice to the person who filed the complaint, the deadline for filing a complaint shall be calculated from the date of delivery of a copy of the definition or when it became known that definition. In Article 257 of the CPC of Uzbekistan stated consequences complaint or protest on a ruling on securing an action, this procedure creates a condition for the full enforcement of judgments handed down. Filing a private complaint or private protest bringing to a court for interim relief shall not suspend the execution of this definition. Filing a private complaint or private protest bringing to the court decision on cancellation of securing the claim, or the replacement of one species by another provision of the claim shall suspend the execution of this definition. The court in a case on the basis of the principle of equality of arms, protects the interests of not only the plaintiff but the defendant, so the purpose of cost recovery as a result of security for the claim, the court (judge) with the claim provision may require the plaintiff compensation for damage that may be caused respondent. Defendant after the entry into force of which the claim is denied, the right to demand from the plaintiff's damages caused by him at the request of the plaintiff accepted measures to secure the claim. The plaintiff, defendant and third persons equally have the right to judicial protection. Based on the principle that legal proceedings in civil cases is based on the equality of the parties specified in Article 8 of the Civil Procedure Code, in procedural legislation also allows the protection of the interests of the defendant in the process of securing the claim. In particular: Participation in the hearing to replace one type of security

for a claim by another; While ensuring an action for recovery of a sum of money

the defendant has the right to return of enforcement measures to make the deposit account of the court the amount claimed by the plaintiff;

By a particular decision of the trial court brought a private complaint and private protest may be filed;

The defendant after the entry into force of which the claim is denied, the right to demand from the plaintiff's damages caused by him at the request of the plaintiff accepted measures to secure the claim;

In addition, in accordance with Article 258 of CPC of Uzbekistan the court (judge) providing a lawsuit, the plaintiff may require the defendant to provide the possible losses.

Securing a claim is allowed during the initial claim and counterclaim in the process. But in many cases, at the stage of preparing the case for trial can also be provided with a lawsuit. In addition, in most cases, it allowed the claim security in the


38

stage of execution of judicial acts and acts of other bodies. Analysis of the types of action suggests that measures to ensure the claim shall apply in respect of claims for the award. These measures are not only in the courts of first instance, but also in the higher courts (appeal, cassation, supervisory authority) in accordance with the law. for example [2], in the inter-district court of Tashkent in civil matters when considering the action to evict the plaintiff TH the defendant BY, taking into account the receipt of the statement on the application of interim measures, considered the materials of the case, the court as a measure to secure the claim of the defendant applied the arrest of residential premises and made the appropriate determination. The Court for the purpose of enforcement of definitions on the civil case sends a copy of the determination of notarial bodies, cadastral services of technical inventory, and other organizations involved in activities related to the subject of the arrest. In conclusion, it should be noted that the features of the claim to ensure reveal the essence of the Institute to ensure the claim, are the study of theoretical, practical and scientific aspects of the institution, the development of appropriate conclusions and manifested in the following: At first, Institute to ensure the claim is a separate

institution from the legal point of view, directly regulated by the Civil, Civil Procedure, Criminal, Criminal Procedure, Economic Procedure Code of the Republic of Uzbekistan and the laws of the Republic of Uzbekistan "On arbitration courts", "On the performance of judicial acts and acts of other bodies "," On Notary "and other legislative acts.

Secondly, to ensure the claim is a procedural measure of coercion tangible and intangible nature of the defendant.

Third, in the CPC of Uzbekistan foundation, and measures to ensure the claim specifically mentioned, their expansion is not allowed, the measures can be replaced by others.

Fourthly, the definition for interim measures shall take effect immediately.

Fifth, the decision of the court for interim measures may be appealed or protested.

Sixth, for non-provisional or protective measures in the legislation established a measure of responsibility.

Based on the foregoing, with respect to the institute to ensure the claim separately highlighted some of the features:

First, the court may apply several measures to ensure the claim, but the total amount shall not exceed the price of the claim;

Second, the court may substitute one measure to secure the claim to the other;

Thirdly, the measure to ensure the claim can be applied in relation to the initial claim and counterclaim against. Although this issue is not specifically listed in the Code of Civil Procedure, it is permitted on the basis of common rules. But there is no indication on the non-use of provisional or protective measures in respect of counter-claims.

Fourth, measures to ensure the claim can be used in criminal procedural law in the resolution of civil claims.

But this procedure is not explicitly stated in the Code of Civil Procedure of the Republic of Uzbekistan. According to the research of judicial practice, the application of provisional or protective measures in the resolution of civil claims by

necessity will allow to maintain the claims and the subject of the claim fully enforce the judicial decisions. In the process of securing the claim the courts should take into account that, in procedural legislation does not specifically indicate what measures securing the claim shall apply in relation to certain actions. Applied interim measures must comply with terms of the plaintiff asserted claims. Do not use provisional or protective measures, not provided for in the procedural law. These circumstances serve to further improve the standards to ensure the claim in the trial and in the course of execution of judicial acts. References 1. For example, the definitions of inter-district of Tashkent

city courts on civil cases in 2013. 2. The definition for interim inter-district court of Tashkent

city civil affairs.


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ISSN: 2455-2194, RJIF 5.12



The concept of interested (Concerned) person to trademark in accordance with the legislation of

Uzbekistan: Legal analysis and proposals

Babakulov ZB

Science Researcher, Tashkent State University of Law, Uzbekistan

Abstract

The article presents scientific and theoretical analysis of the rights of interested (concerned) persons in trademark (service mark),

the legal framework and procedure for their implementation, as well as the aspects of protection rights to the trademark (service

mark), by the owner of the exclusive rights (absolute owner), from the demands of the interested (concerned) persons.

Keywords: trademark, interested (concerned) person, the owner of the exclusive rights

Introduction

In accordance with the first paragraph of article 1102 of the

Civil Code of the Republic of Uzbekistan, legal protection of a

trademark (service mark) shall be provided on basis of its

registration. In addition, the exclusive rights for a trademark

shall be certified by certification on registration of a trademark

(service mark).

The implementation of rights in relation to trademark include

the followings: production of goods, giving it to another person

for the purpose of temporary use, involving in business activity

as a share, disposal to another person without keeping the

exclusive rights to trademark.

In some cases, we interpret exclusive rights to trademark as

exclusive rights to property. But this is wrong, because

property rights are given to a person for life, even when one

died, one’s heirs possess the right to use and dispose the

property and they can ensure their rights, as they wish, in the

way not prohibited by law.

One of the identifying features of the property rights from the

exclusive rights is specified in the first part of article 1104 of

the Civil Code of the Republic of Uzbekistan: “In case of

nonuse of a trademark without good reasons at all times during

five years, its registration may be cancelled by request of any

interested person”.

This means, according to the Civil Code of the Republic of

Uzbekistan, owner of the exclusive rights must use the the

trademark which belong to him/her. This is an imperative rule

for trademark owners. We decided to clarify some points in the

article 1104 of the Civil Code of the Republic of Uzbekistan.

The legal status of the interested person is not regulated in

detail. Besides that, certain concepts (defined in article 1104)

such as “continuous non-use of trademark” and “any interested

person” require deeper legal analysis.

After all, canceling of trademark ownership on a legal basis,

which belong to owner of the exclusive rights, must be proven

by the circumstancial facts.

If the entitled state body finds the groundless interest of other

persons to trademark lawful, and decides for the benefit of

other persons, this leads to violation of the rights and interests

of the subject who personalized the trademark.

Trademark certificate is valid for 10 years from the date issued,

in accordance with article 21 of the Law of the Republic of

Uzbekistan “On trademarks, service marks and names of places

of origin of the goods”.

If the owner of the exclusive rights does not carry out any

activity (in relation to the use of trademark) during the 5 years,

it can be canceled according to the request of any interested

person.

Based on the Article 25 of the Law (August 30, 2001) “On

trademarks, service marks and names of places of origin of

goods”, “the trademark validity, on basis of the decision of the

court, may be fully or partially terminated before the deadline,

if there is continuous non-use of it in any five-year period”.

In accordance with the legislation, “When hearing the case on

early termination of the validity of the certificate of trademark

in connection with the non-use of it, the evidence, provided by

the owner of the trademark, proving the circumstances that

prevented from the use of trademark can be taken into

account”.

Including the concept of “interested person” in the legislation

related to the legal regulation of trademarks, first of all, is

causing the owners of the exclusive rights to treat the

trademarks as “unnecessary items”. This is being an artificial

barrier to legitimate use of trademarks, which are so similar

that they could be confused, or almost the same, by getting

permission from relevant government agencies.

Treating trademarks as “unnecessary items” can be reflected

like this: a person registers (compulsory) the trademark, in fact,

he does not use it. This is “getting benefit without using” by

abusing one’s own interests [1].

In this case, the negative aspects can be seen when it leads

some obstacles in registration, by competing persons, of

identical or similar trademarks in relation to the registered

ones. As a result, use of trademarks (which are in non-use)

hinders the development of the market. In order to restrict

competition their owners register the same or similar to the

trade marks and this is leading to the establishment of

1 Kudakov A.D. Non-use of a trademark as the basis for the termination of its

protection: Dissertation for the degree of Candidate of Juridical Sciences. - Moscow, 2006.


40

limitations [2]. Here, the interested person can apply to the

competent state body with a demand from the owner of

exclusive rights in the following content: “if you are using the

trademark, then give us permission to use it”.

In protection of the interests of the interested person with

regard to trademarks, first, we should define who can be the

interested person and the conditions and procedures should be

explored. Unfortunately, the identification and legal assessment

of the interested person in trademark is not reflected in laws

and normative legal acts. In law enforcement practice, this can

lead to some misunderstandings, especially in consideration of

the requirements for the interested person in trademark.

The provision and protection (keeping by the owner of

exclusive rights the groundless (unreasonable) trademark under

his/her ownership) of the rights of the interested person with

regard to trademarks are regulated with administrative and

procedural legislation, not with the rules of civil law.

The most important feature of the interested person is his right

to make a claim in the interests of their trademark [3]. Person’s

interest may be allowed by the court only when there are

related grounds. It would be logically wrong to use the concept

of “interested person” for any person.

The concept of interested person in trademark reflected in the

Paris Convention for the Protection of Industrial Property dated

March 20, 1883. In accordance with the article 9 of the

Convention, the interested persons could be legal and physical

persons. Broader interpretation is given in article 10.

According to it, “interested person is a physical or legal person

(entity) who prepare, sell and produce”. The rules of this

Convention are exercised in all countries, which ratified the

convention, with regard to the objects of industrial property

(such as invention, useful model, industrial sample,

trademarks, service marks, firm names, origin of place names

of items).

Legal status of “interested person” in trademark is determined

and specified in the legislation of some countries. For example,

in accordance with he article 1486 of the Civil Code of the

Russian Federation, if the owner of the exclusive rights does

not use the trademark continuously for 3 years, interested

person (party) shall have the right to apply to the relevant

authorities to cancel the it (the right to trademark). In

accordance with the same law, the applicant as an interested

person, is required to prove that the owner of the exclusive

rights is not using the trademark. In turn, if the owner of the

trade mark submits evidence that he/she did not use the

tardemark due to the reasons that are not related to him/her (for

example, the company temporarily stopped production because

of reconstruction, re-equipment or there has not been sufficient

demand for the goods in the market), this can be taken into

account [4].

According to the article 46 and 47 of the Law on Trademarks

passed in 1994, in England, any person has the to apply to

cancel the registered trademark [5]. In accordance with the laws

of this county, registered trademark may be cancelled by the

2 Bogdanova E. Interest of a person in early termination of trademark

protection // Intellectual Property. Industrial property. 2013. № 8. p. 6. 3 Mikhailov S.V. Category of interest in the Russian civil law. M., 2002, p.

177-191. 4 Oqyulov O. Theoretical and practical issues of legal status of Intellectual property. / Responsible editor: X.Rahmonqulov. T.: TSUL, 2004. – p. 158. 5 T. Hart, L. Fazzani and S. Clarck. Intellectual Property Law. Hampshire:

Palgrave Macmillan Law Masrers, 2009. p. 102

decision of the government body that registered it or based on

the decision of the court. Similar rules to the concept of an

interested (concerned) person in trademarks are given in the

Laws of Germany, article 25 of the Trademarks Act, article 2

of the law on trade marks of Canada, in article 12 of the similar

Law in Switzerland. In all of the above-listed countries, if the

owner of the exclusive rights does not use the trademark

continuously for 5 years, interested person (party) shall have

the right to apply to the relevant authorities to cancel the it (the

right to trademark).

In the Russian Federation, the State Patent Office Persons,

which determines the interested (concerned) person in

trademark, worked out Information Letter on May 20, 2009,

No. 3, “On early termination of trademark as a result of non-

use of trademark on the basis of the application from the

interested parties”. This Letter explains the concept of

interested (concerned) person expressed in article 1486 of the

Civil Code of the Russian Federation.

The determination of interest (concern) of persons in

trademark, in most cases, is regulated not with the norms of

substantial law, but the norms of procedural law. Because a the

determination of interest of persons in trademark is expressed

by whether the subject has the right to claim or not. Secondly,

if provided relevant evidence, examined [6] whether there is

aninterest or not, and as a result, the court decides whether to

receive the case for hearing or not.

In accordance with the part 5 of article 25 of the Law of the

Republic of Uzbekistan “On trademarks, service marks and

names of places of origin of the goods” (August 30, 2001),

early termination of the certificate given for the trademark is

carried out by the decision of the Board of Appeal or court

decision, on the basis of the application, submitted to the

Agency by the trademark owner or the certificate (for the use

of place name of the origin of goods) owner.

When trademark is registered but not in use, this results in

appearance of exclusive rights for personalization tools such as

company names, domain names.

In accordance with the paragraph 3, part 2 of article 9 of the

Law of the Republic of Uzbekistan “On trademarks, service

marks and names of places of origin of the goods” (August 30,

2001), the person who wants to register the trademark are

grouped according to the International Classification of Goods

and Services. The list of goods and a request for registration of

the trade mark should be displayed. That is, the person that

requested the registration of the trademark identifies that there

is interest in the production of such products. The produced

goods under the requested trademark determined by “Niche

Agreement on International Classification of trademark and

services for registration of goods”.

The person, who personalized trademark, as noted above,

registers this or that class of commodity for production and

produces. However, in some cases, the owner of the trademark

does not have the ability to produce all the goods under the

registered sign. Consequently, there exists non-use of

trademark. That is, the owner of the exclusive rights does not

carry out the production of certain goods. As a result, other

interested parties are unable to register thier trademark as

owner of the exclusive rights has a class of some commodity

6 Metlyaev D. The interest in the affairs of non-use of trademarks: admit,

can’t refuse // Intellectual Property. Industrial property. 2015. № 1. p. 48.


41

products, the production capacity of the production of goods

produced. This is a priority to the earlier trademark which has

been recognized as the same or similar characters associated

with the condition. So, of course, this means the owner of the

exclusive rights will be entitled to apply to the appropriate state

agency to cancel this trademark.

If we examine the law-enforcement practice, the majority of

the class will not be canceled because of not manufacture but

because of certain goods not manufactured in the class, can be

seen partially canceled. In particular, intellectual property

rights by the Court of the Russian Federation № SIP-449/2013

is [7] partially satisfied. According to the content of the work,

trademark “FIRE & ICE” was used only for the production of

alcohol products like “brandy”. It was prohibited to produce

vodka, whiskey, wine, rum and liqueur under this trademark.

As a result, other interested parties and the owner of the

exclusive rights who used the trademark “FIRE & ICE” for the

production of vodka, whiskey, wine, rum, and liqueur stopped

the implementation of the activities of the production of such

products.

That is why, the rules of the third part of article 25 of the Law

of the Republic of Uzbekistan “On trademarks, service marks

and names of places of origin of the goods” (August 30, 2001)

“… in accordance with the application of a person interested on

the basis of the decision of the court can have partial

liquidation ahead of schedule” can be understood as a partial

rejection, to cancel the trademark with regard to exclusive

rights, in the event of the nonuse of the registered trademark

within five years.

One of the identifying features of the property rights from the

exclusive rights is specified in the first part of article 1104 of

the Civil Code of the Republic of Uzbekistan. In accordance

with the Article 1104 of the Civil Code of the Republic of

Uzbekistan, in case of nonuse of a trademark without good

reasons at all times during five years, its registration may be

cancelled by request of any interested person. Today, the

importance of implementing this provision can be reflected in

the dollowings: economic relations are constantly developing,

increasing the volume of production of a range of goods in the

same class, as well as other persons having priority in practice

with the same or similar trademark registration or protection

from refusal. In these cases, it would be appropriate to change

the 5-year term under article 1104 (of the Civil Code of the

Republic of Uzbekistan) to 3 years.

Based on the above, the followings are the factors which show

the interest of interested (concerned) person in the trademark:

product is manufactured under the trade mark (the hanging

of trademark as advertisement, for the conclusion of sale-

purchase agreement);

provision of required technology of interested person the

legal and physical persons (individual entrepreneurs) for the

production of the product under the trademark;

submission of the application, with the evidence, to the

appropriate state agency;

display of to which trademark is given the evidence;

the most important, conclusion of expertise examination

which shows the entity’s dominant position in the proposed

trademark before the goods with the same or similar

features.

7 Decision of the Court on Intellectual rights dated 17.04.2014 case № SIP-

449/2013

Reference 1. Petrova P. Problems relating to the consideration of

applications for early cancellation of the trademark

registration // EC. Industrial property. 2001; 1:31.

2. Kudakov AD. Non-use of a trademark as the basis for the

termination of its protection: Dissertation for the degree of

Candidate of juridical Sciences. - Moscow, 2006.

3. Bogdanova E. Interest of person in early termination of

trademark protection // Intellectual Property. Industrial

property. 2013; 8:6.

4. Mikhaylov SV. Category of interest in the Russian civil

law. M. 2002, 177-191.

5. Oqyulov O. Theoretical and practical issues of legal status

of Intellectual property. / Responsible editor: X.

Rahmonqulov. T. TSUL, 2004, 158.

6. Mikhaylov SV. On the definition of the interest of a

person, who applied for early termination of legal

protection of trademark in connection with its non-

recognition in cases of invalid decisions of the Court //

Journal of intellectual property rights / M. 2014, 44.

7. Hart T, Fazzani L, Clarck S. Intellectual Property Law.

Hampshire: Palgrave Macmillan Law Masrers, 2009, 102.

8. Metlyaev D. The interest in the affairs of non-use of

trademarks: admit, can’t refuse // Intellectual Property.

Industrial property. 2015; 1:48.

9. The Court’s decision on the intellectual property rights of

17.04.2014 on case number STS-449/2013.


42


ISSN: 2455-2194, RJIF 5.12



The role of the chamber of accounts in the implementation of the state financial control: The

experience of Uzbekistan

Adilhodjaev Sherzod Shuhratovich

Independent researcher, Department of Administrative and Financial Law, Tashkent State University of Law, Master of Law, Uzbekistan

Abstract

The article analyzes the status of the Accounting Chamber of the Republic of Uzbekistan, the basic functions of the Accounts

Chamber of the Republic of Uzbekistan on the implementation of the state financial control. We consider the current legislation of

the Republic of Uzbekistan, which regulates Accounting Chamber in particular, the article examines the Budget Code of the

Republic of Uzbekistan.

Keywords: the Account chamber of Republic of Uzbekistan, state financial control, the State budget, monitoring, independence,

objectivity

Introduction

In a democratic state, where the source of power is the people,

the formation and functioning of the audit chambers

subordinate to the needs of the whole society in the control of

the financial activity of the state, the performance management

of public finances entrusted to it. Organized thus counting

chambers of budgetary control, remaining the state, it becomes

at the same time the control of the public (national) and acquire

considerable authority.

History of the Accounting Chamber as a body exercising

control over the budget has more than 750 years. Even in 1256

in the annals of Louis IX referred to the work of the

commission engaged in the financial statements for submission

to the king. In 1303 when Felipe IV, the Accounting Chamber

was founded in Paris, and in 1320 Philip V issued a decree

according to which the priority of the Accounts Chamber gets

control over public revenue [1].

Modern Institute of counting chambers is his record since 16

September 1807 when France was signed into law on the

establishment of the Accounts Court (La Cour des Comptes), it

is more accurately translated as the name of the new institution

of state financial control, established by Napoleon. The Audit

Chamber was then centralized institution, to establish which

was the emperor informed about the state of public financial

accountability [2].

FROM even the House as a special state institutions perform a

significant social function - to ensure effective control over the

finances of the state. It is in these bodies shall be responsible

for auditing government revenue and expenditure, to ensure the

financial integrity and accountability of the state system, as

well as other functions related to the external state financial

control [3].

The most important question for the audit chambers associated

with the functions they perform - this is a question about the

1 LM Samoilov Chamber of Accounts of France: 200 years of independence \\ Financial Law. 2010. №3. S.10- 13.

2 Barilari A. Les controles financiers comptables, administratifs et

juridictionnels des finances publicies. Paris, LGDJ.2003.P.110-115. 3 Rodionova B.M, Shleynikov V.I. Financial control. M. 2002. S. 60.

status of the Accounting Chamber. Currently, there is an

ambiguous interpretation of the Court of Auditors the status of

the system of government, to be exact - which of the branches

it pertains, or as a separate structure exists. The most common

is the consideration of the Court of Accounts as the bodies

ensuring the realization of the control function of the

legislative power, because within its structure.

Declaration monitoring guidelines adopted by the International

Organization of Supreme Audit Institutions, declares

independence as the main principle of the activities of Supreme

Audit Institutions. Supreme Audit Institution's independence

should be guaranteed by the constitution, the law and to allow

it to operate with a high degree of initiative and autonomy.

Provisions of the Supreme Audit Institution relationship with

the Parliament should be determined by the constitution [4].

Chairman of the Chamber of Accounts of France Philip Segal

also believes that the status of the Accounting Chamber as an

independent body, enshrined in the Constitution, is an

important principle and key to an impartial monitoring [5].

Thus, there are two points of view, according to the first

counting chambers are specialized bodies exercising state

financial control in parliament, and therefore belong to the

legislative branch. A certain logic in this, because Parliament

consists of the representatives of the people, who should be in

charge of where public funds are going. Even historically the

control function of the Parliament appeared before the

legislative as well as an organic consequence of the nature of

parliamentary representation. In the course of political struggle

even in 1215 the barons and top management forced English

King John to sign the Magna Carta, according to which no tax

is charged without the consent of the Council of the Kingdom

(the prototype of the House of Lords), finding thereby control

of the royal expenses [6]. According to the second opinion the

4 Legal regulation of the state financial control in foreign countries //

Analytical review and compilation of regulatory documents. M.1998. S. 42. 5 L.M. Samoilov Chamber of Accounts of France: 200 years of independence

\\ Financial Law. 2010. №3. S. 10- 13.

6. Kovryakova E.V. Parliamentary oversight: international experience and Russian practice. Gorodets. 2005. P.5.


43

Accounting Chamber is an independent body.

However, all the researchers are unanimous in the opinion that

the Accounting Chamber of control object up budget, all

questions of planning, storage and disposal of public finances [7].

We believe that the status of the audit chambers must be

independent, and these are the bodies that should not apply to

any branch of government. In Uzbekistan, the Chamber of

Accounts is an independent Supreme Audit Institutions,

independent and objective in their assessments, monitoring and

public oversight over the targeted and effective execution of

the State Budget of the Republic of Uzbekistan. In accordance

with Art. 78 of the Constitution of the Republic of Uzbekistan,

the Chamber presents an annual report to the Legislative

Chamber and then the Senate of the Oliy Majlis of Uzbekistan.

The Constitution of the Republic of Uzbekistan does not

establish that the Audit Chamber refers to the legislative

branch. Chamber of Accounts in its activity is accountable to

the President of the Republic of Uzbekistan, Chamber of Oliy

Majlis of Uzbekistan.

The independence of public authorities with a special status is

manifested in their institutional isolation in the organization of

the government, non-interference in the exercise of their

powers, effective and comprehensive financial control of

public funds. Therefore, we believe that the Accounting

Chamber of the Republic of Uzbekistan has the status of an

independent specialized body which exercises control over

public finances.

In accordance with the Budget Code, in the terms of reference

of the Audit Chamber of the Republic of Uzbekistan in the

field of budgetary relations is to represent the Cabinet of

Ministers of Uzbekistan opinion on the draft State Budget of

the Republic of Uzbekistan; implementation of the external

audit and assessment of the annual report on execution of the

State Budget of the Republic of Uzbekistan and budgets of

state trust funds and submission to the Cabinet of Ministers an

opinion on them and other powers. The Accounts Chamber of

the Republic of Uzbekistan is endowed with wide powers in

the sphere of budgetary control. The budgetary powers of the

Accounting Chamber enshrined in Article 26 of the Budget

Code [8]. The leading role of the Accounting Chamber in the

fight against corruption is: the development and

implementation of financial control over the observance of

legislation, the monitoring of corruption offenses [9]. The

powers of the Accounting Chamber in the state financial

control are envisaged in Article 174 of the Budget Code.

Among them is the most significant: the control over the

execution of the expenditure part of the State budget; analysis

and study of variations in the budget process [10].

Analysis of the current legislation allows us to consider the

Accounts Chamber of the Republic of Uzbekistan as an

independent state body with special status, ie, body, not

directly included in any of the three powers. This is consistent

7. Baglaĭ M.V. Constitutional Law of the Russian Federation. M. 2007, pp 3.53- 355.

8. Budget Code of the Republic of Uzbekistan // Meeting of the legislation of

the Republic of Uzbekistan. 2013 number 52-I; S. 645 9. Grasshoppers V.E. The role of the Accounts Chamber of the Russian

Federation in combating against corruption in the public sector financial //

Financial pravo.2012. №6. S.2-5. 10. Budget Code of the Republic of Uzbekistan // Meeting of the legislation

of the Republic of Uzbekistan, 2013, number 52-I; 2014, number 36, Art.

452; 2015, number 52, st.548

with modern trends of the independence of budgetary control

institutions under international law and experience of foreign

countries with developed financial control system. The priority

directions of activity of the Accounting Chamber should

include surveillance, monitoring and analytical work related to

financial controls carried out by it.

In this way, during its operation of the Accounts Chamber of

the Republic of Uzbekistan has proved to be an effective body

responsible for budgetary control and has taken its rightful

place in the mechanism of the state as the Supreme Audit

Institution. During the global financial and economic crisis, the

authoritative international organizations, in particular the

United Nations, for the first time turned his attention to

external financial control, and recommended that all States -

UN member states to adhere to international standards in this

area. And one of the most important international principles

INTOSAL is to guarantee the independence of financial control

body at the level of the Constitution and laws. The Accounts

Chamber of the Republic of Uzbekistan is the most important

specialized body exercising budgetary control. The Audit

Chamber has already established itself as a central institutional

structure, has control over the proper spending of the state

budget. But in the future its activities will certainly be

improved.

References 1. Baglay MV. Constitutional Law of the Russian Federation.

M. Publishing house Norm, 2007, 784.

2. Zemlin AI. Budget Law. M. Publishing House

"Jurisprudence, 2001, 240.

3. Krokhina YA. Financial Law of Russia. M. Publishing

house Norm, 2007, 688S.

4. Kovryakova EV. Parliamentary oversight: international

experience and Russian practice. Gorodets. 2005, 192s.

5. Grasshoppers VE. The role of the Accounts Chamber of

the Russian Federation in combating against corruption in

the public sector financial//Financial pravo. 2012; 6:S.2-5.

6. Legal regulation of the state financial control in foreign

countries // Analytical review and compilation of

regulatory documents. M. 1998, S42.

7. Rodionova BM, Shleynikov VI. Financial control. M.

Publishing House. FBK-Press. 2002, 320.

8. Romanovsky MV. The budgetary system of the Russian

Federation. M. Publishing House Yurayt. 2000, 576.

9. Samoilov LM Chamber of Accounts of France: 200 years

of independence \\ Financial Law. 2010; 3:10-13.

10. Financial right. Textbook. Ans. Ed. Himicheva NI M.

Publishing House Beck, 1995, 524.

11. Chernobrovkina EB. Distribution of powers of

representative and executive bodies of state authority in

the sphere of budget: Abstract. diss..... PhD. jurid.

Sciences. M. 2002, 31c.

12. Shokhin SO. Problems and prospects of development of

the financial control in the Russian Federation. M.

Publishing House Finance and Statistics. 1999, 352.

13. Barilari A. Les controles financiers comptables,

administratifs et juridictionnels des finances publicies.

Paris, LGDJ. 2003, 160.

14. Collection of legislation of the Republic of Uzbekistan,

2013-2015; 52-1, 36, 452, 52, 548.

15. Coll. Zak Islands Uzbekistan. 2006, 37-38.


44


ISSN: 2455-2194, RJIF 5.12



Civil-law problems connected with obligatory drawn contracts

Topildiev Vokhid Rakhimjonovich

Ass. Professor of the chair “Legal disciplines”, Candidate of science, National University of Uzbekistan

Abstract

The problems of civil-law connected with obligatory drawn contracts were analyzed in the article as well as the suggestions about

contracting and development of them was given.

Keywords: free contracting, contract, compulsory contract, drawing an agreement, the stages of drawing up agreements,

consideration and signing the contracts, contract archiving

Introduction

The principle of freedom of contract is one of the most

important rules of the civil legislation of the Republic of

Uzbekistan, based on market relations. Freedom of contract as

a basis of civil legal documents was reflected in article 1 of

the current Civil Code of the Republic of Uzbekistan as well

as the freedom of contracts is harmonious with the initiative

of participants of market economic relations, with ample

opportunities given to them and freedoms, with the rules of

civil law ordering as non-interference in the part of the

activities, such as the laws of market supply and demand,

competition. At the same time, freedom of contract is

particularly important in the development of

entrepreneurship, providing opportunities to small businesses

and legal safeguards.

Freedom in the preparation of contracts and in the choice of

the form drawn up by the contracting parties of legal relations

is enshrined in Article 8 of the Civil Code of the Republic of

Uzbekistan. According to him, the civil rights and obligations

arise from treaties and other agreements provided for by law,

and treaties and agreements, not provided for by law, but not

contrary to it. For this reason, the choice of types of contracts

and, in general, with the expression of the desire to make the

contract and enter into a contractual relationship, the parties

entering into a legal relationship are free.

The content of the freedom of contract is reflected in article

354 of the Civil Code of the Republic of Uzbekistan,

according to which citizens and legal entities in the

preparation of contracts are free.

According to Professor I.B. Zokirov the principle of freedom

of contract can be understood by highlighting three positions:

1) Freedom of choice of the subject of his counterpart, that is a

partner in the contract;

2) The freedom to choose the subject of the contract, that is

the state of adoption of the treaty;

3) Freedom of choice of the contract conditions.

The implementation of these three provisions in relation to

the subject should not exert any improper influence [1].

A.N.Tanaga gives the following definition of the principle of

freedom of contract: the freedom of contract - directly

enshrined in law the primary basis for civil law, which

1 Zokirov IB Civil law. Textbook. -Tashkent. TSIL, 2009. Part 1. -384 With.

determines the freedom to create contracts, freedom of choice

of species is freedom of contract and determining the terms

and conditions for the subjects of relations contracts [2].

According H.R.Rahmonқulova freedom of contract leads to

the existence of the true desires and will of the parties in

entering into a relationship agreement. This will is manifested

primarily in the actions on drawing up the contract, and

secondly, in the act of determining the conditions of the

contract, in the third, the actions to fulfill the contract

obligations [3].

According to part 2 of article 354 of the Civil Code of the

Republic of Uzbekistan is not allowed forced drafting of the

contract. Cases duty of drawing up the agreement in the cases

provided for in this Code and other laws or the commitments

are the exception.

According H.R. Rahmonqulov, according to the legislative

documents in force at the time of the socialist system, the

composition of many contracts are required. State,

cooperative, public organizations were required to make a

corresponding agreement. This commitment, first of all, arose

on the basis of planned targets. Existing civil legal documents

also suggest drafting contracts compulsory. However, the

legislation of the modern system is very different from the

law of the former system. Drawing up of contracts

compulsory by law only in specific cases established [4].

R.Kniper about drawing in the CIS agreement on a mandatory

basis considers that the establishment of the Civil Code, along

with the freedom of contracting is not without reason restricts

these principles and the restriction in the first place, which is

carried out in terms of social protection and consumer

protection. At the moment, the legislation of some countries,

such as the Civil Code of Georgia and Moldova, established

the compulsory contracting for leading at the enterprise

market, and other relevant circumstances, the civil laws of

other CIS countries have established rules for drawing up the

agreement on a mandatory basis in accordance with the Civil

2 Tanga A.N. The principle of freedom contract civil law of Russia.- St.

Petersburg. Press Law Center. 2003. - P.39. 3 Rahmonqulov H. with descender. Liability law. Text book.- T.:

TGYUI.2005 - p.227.

4 Rahmonqulov H. with descender.Liability law. Text book.- T.: TGYUI.2005 - p.253.


45

Code of the CIS model [5].

Indeed, the introduction of compulsory drafting in the

exceptional freedom of drawing up the order contract

determines the mandatory preparation of contract with respect

to one side or two sides. Mandatory drawing up of the

contract gives rise to organizational and legal relations and

the emergence of such a relationship, their content and the

conditions for their implementation are reflected in the Civil

Code.

According to N.D. Egorova, a procedure for drawing up the

contract according to the law is used when drawing up a

contract for one of the parties be sure, that is when you should

make a binding contract [6].

Organizational and legal relationship with the compilation of

the contract is mandatory, the draft treaty origin, its adoption

and the administration of response, changes in the conditions

provided for in the draft treaty or organizational processes

associated with the rejection of the formation of the contract

are reflected in article 377 of the Civil Code of the Republic

of Uzbekistan. According to part 1 of this article, according to

this Code or other laws, in cases where a party has sent an

offer (the draft agreement) is required to draw up a contract,

the other party within 30 days should be direct awareness

(disagreements protocol with the draft treaty) on the

acceptance or rejection of the acceptance of the offer or the

acceptance of other conditions.

According to E.S. Kanyazov, when drawing up a contract for

a party that has sent the offer (the draft contract), is

mandatory, the other party within 30 days is required to send

the notice. This is performed in the following forms:

Notice of acceptance;

Notification of non-acceptance;

Extension of the requirements of the treaty-based

requirements, which differ from the requirements proposed

by the acceptance of the offer. However, this notice, in

contrast to Article 375 of the Civil Code says abuse of

acceptance. In this case, together with the draft sent to the

seller signed the protocol disagreements [7].

In this sense, joining E.S.Kanyazov opinion it should be noted

the absence of a logical connection between the rules of

Article 375 of the Civil Code of the Republic of Uzbekistan

and the Article 377. The reason is that in Article 375 of the

Civil Code stated the rule that "the answer of the agreement

on the basis of drawing up the contract conditions that differ

from those offered in the offer are not considered to be an

acceptance. Such a response is a refusal to accept at the same

time a new offer. “In the same article 375 of the Civil Code of

the Republic of Uzbekistan provides for the administration of

disagreement with the protocol agreement signed by the

project in accordance with Part 2 of Article 460, determined

by the rules of the stages of drawing up a binding contract

and, in this case, the parties decide on organizational matters

relating to possible changes in the relevant project. In

addition, Article 375 of the Civil Code requires rules on the

stages of drawing up the contract, as Article 377 of the Civil

5 Knieper R. Development of civil codes in the CIS. / 10 years of the Civil Code of Uzbekistan's experience and perspectives development.-T.

KONSAUDITINFORM-NASHR, 2008. - P.28.

6 Civil law. V.1. // Pod.red.A.P.Sergeeva, Yu.K.Tolstogo.-M. Prospect, 2003. - P. 607.

7 Comments of the Civil Code of the Republic of Uzbekistan. Tom-I-T.

Vektor-Press, 2010. - 782 pp.

Code sets the rules "drawing up of the contract is mandatory",

is an exception from the normal procedure for drawing up the

contract. Therefore, in order to ensure mutual consistency and

eliminate contradictions between them should introduce a rule

"are the exception rule of Article 377 of the Code." This will

serve as the correct use of the rules of the Civil Code and

prevent groundless conflicts between the parties.

It should be noted, preparation of contracts is a mandatory

organizational and legal relations and to acquire property hue.

The aim of such relations is to generate in the future

contractual relationship with the property shade and execute

the contract. Typically, such a procedure for drawing up a

binding contract does not apply to all types of binding

contracts and binding agreements that do not use this

procedure, organizational relationships do not occur. For

example, when drawing up the contract of retail dealer, has a

massive contract and engaged in ongoing business and

customer need for such a procedure is not felt. The reason is

that the implementation of the retail sale contract, despite the

fact that it is necessary for the seller, in many cases, carried

out immediately after the preparation and, at the same time

the administration of the offer waiting in within 30 days of

acceptance, and other organizational issues are not observed.

Therefore, to talk about the preparation of all types of

"compulsory agreements" mandatory and include them in the

number of contracts drawn up by a mandatory, it would be

wrong. As the "preparation of the contract is mandatory" and

"binding contract" - differing legal reality and they should be

analyzed separately.

In this sense, the inclusion of some of the authors of the mass

of agreements aimed at protecting consumers' interests in a

group of contracts, drawn up by a mandatory [8] From the

point of view of logic, not advisable. This agreement (the

massive contract), despite the fact that it is considered

essential for one of the parties is required, the procedure for

its preparation was not based on Article 377 of the Civil Code

rules. Contracts of this type (bulk agreements) prohibited by

law at first to accept the conditions of party providing the

goods, works and services, and then refuse to side in drawing

up the contract. And drafting of the contract, usually carried

out on the basis of the rules laid down in the preparation of

contracts. In drawing up the agreement on a mandatory basis,

the contracting parties shall be established in advance, and

based on this, one side or two sides of the contract are forced

to draw up a contract. For this reason, they should discuss the

organizational and legal issues related to future legal

relations, the responsibilities entrusted to them, and rights.

This gives rise to organizational and legal relations and

property relations agreement between them and the content of

the contract and questions on registration.

For example, in the Charter, approved by Decision № 383 of

the Cabinet of Ministers dated September 4, 2003 "On the

procedure of drawing up contracts between the producers of

agricultural products and billet, service organizations, their

registration, execution, and monitoring of their

implementation" set the direct order of drawing up contracts

in preparation, processing and purchasing of agricultural

8 Rahmonqulov H. with descender.Liability law. Textbook. T:. TGYUI.2005. - S.255-257.; Knieper R. Development of civil codes in the CIS. // 10 years

of the Civil Code of Uzbekistan's experience and perspectives razvitiya.-T:

KONSAUDITINFORM-NASHR, 2008. - P.28.


46

products. According to the Charter, the drafting of contracts

of contraction carried out directly in the farms. Contraction

contract, as the contract on the delivery of material and

technical resources and the provision of services (works)

based on the volumes set out in the business plans of farms,

should be made one month before the beginning of

agricultural activities, but no later than the beginning of the

calendar year.

When drawing up the contract originator sends his

responsible representative in the economy. The compiler has

the right to send through the mail in the economy of

contraction draft contract, if the parties are in different fields

and agree to draw up a contract.

Since the compiler representative visit the farm or from the

receipt of the draft treaty by mail within 7 days of the contract

must be signed and returned to the originator. In the case of

objection to the occurrences of farms over the requirements of

the contract, the economy in the same period of

disagreements and sends the originator signed contract in

duplicate.

After the compiler will receive disagreements, within five

days, he is obliged to make proposals received for

consideration, in the same time frame for consideration of

conflict situations is obliged to submit to the appropriate

economic court. The contract is prepared and signed in

triplicate. Wood and service organizations provide to the

District Department of Agriculture and Water written contract

for registration within three days after the drawing. When you

register you can not request additional documents or pay.

If the agreement meets the requirements of the district

department of agriculture and water management registers it

in the prescribed manner. In the case of non-compliance with

the established requirements of the contract, the decision to

refuse registration. In case of cancellation of registration of

the contract, billet and service organizations, eliminating

defects, shall, within three days to provide it again.

It can be seen that the preparation of the contract

kontraktatsionnogo carried out according to the rules for a

mandatory contract, laid down in Article 377 of the Civil

Code, the special rules of the Constitution and raises a

number of organizational and legal relations. Organizational

work to be implemented by the Parties in the preparation of

kontraktatsionnogo contract and the timing of their

implementation are set out in Annex 1 to the Constitution and

the application is called the "phase of the contracts between

the producers of agricultural products, billet, service

organizations, their registration." These steps are in the form

of the following table:

Stages of preparation of contracts between producers of agricultural products, billet, service organizations,

their registration

Steps Events Deadlines Responsible persons

Stage 1 Preparations for drawing up contracts One month before the start of

farming activities Wood, servicing and other organizations

2-stage Review and signing of contracts Within 7 days Agricultural enterprises

3rd step Delivery contracts for registration Within 3 days Wood, servicing and other organizations

4-Stage Registration of contracts Within 3 working days Departments of Agriculture and Water Resources

5th step Issuance billet contracts, servicing and

other organizations after registration After registration in 1 day Departments of Agriculture and Water Resources

6th step Issuance of farms registered contracts After registering for 2 days Wood, servicing and other organizations

Stage 7 Storage contracts After all the requirements of

the contract for 3 years

Wood, servicing and other organizations,

departments of Agriculture and Water Resources

of Agriculture enterprise

From these steps it is clear that the drawing up of contracts

necessarily carried out only in the form of organizational and

legal relations and their aim is not the formation of a specific

value or a product of the amount of material, and the execution

of the intangible nature of the actions.

References 1. Zokirov IB Civil law. Textbook. -Tashkent. TSIL, 2009;

1-384.

2. AN 2.Tanaga The principle of freedom of contract in civil

law of Russia. -St. Petersburg. Press Law Center. 2003, 39.

3. Raҳmonқulov Kha with descender. Liability law.

Uchebnik.- T.: TGYUI. 2005, 257.

4. Knieper R. development of civil codes in the CIS. / 10

years of experience in the Civil Code of Uzbekistan and

prospects. T. KONSAUDITINFORM-NASHR, 2008, 28.

5. Grazhdanskoe right. V.1. // Pod.red.A.P.Sergeeva,

Yu.K.Tolstogo.-M. Prospect, 2003, 607.

6. Comments of the Civil Code of the Republic of

Uzbekistan. T. Vektor-Press, 2010; 1:782.

7. Civil law. II-part. T. Ilm-Ziyo, 2008, 64-65.

8. Civil law. II-part. T: Ilm-Ziyo, 2008, 64-65.


47


ISSN: 2455-2194, RJIF 5.12



Comparative analysis of modern foreign legislation on the right to building

Vosid Ergashev

Head of the department of State law and administration at Tashkent State University of Law, Uzbekistan

Abstract

This article examines the characteristics of regulatory law in the countries of continental Europe and some countries in the post-

Soviet area. Based on the conducted analysis some differences and similarities in the formation of this institution in the Romano-

Germanic legal family are revealed. Theoretical recommendations on introduction of the positive experience of these countries are

developed to improve national civil law.

Keywords: rights in things, real estate, limited real rights, servitude, right of ownership, contract, a plot of land, builder, building

Introduction

Rights in things are an integral part of the civil laws of any

developed nation. In domestic civil law science and legal

system, in general at least, all property rights referred to the

right of ownership for a long time. Their present renaissance

occurred in the last decade of the last century, when the

newest codification of civil legislation became a complex and

extensive system of property rights, consisting of a set of

interrelated elements.

At the same time, the world and domestic practice of law

enforcement suggests that the legislative formulation of

property relations concerning possession, use and disposal of

a plot of land cannot be reduced solely to the right of

ownership. In this regard, in condition of development of

market relations the institution of limited real rights to the

land, providing the opportunity of realization of rights to land

plots owned by the right of ownership to others is crucial.

In connection with the process of development and

improvement of civil legislation of Uzbekistan at the present

stage there is a need in studying experience of legal regulation

of limited real rights to the land in foreign countries.

Features of regulation of limited rights in things in continental

European countries are of great interest to us, due to the

historical relationship of the legal system of Uzbekistan and

the countries of the Romano-Germanic legal family. It should

be noted that the development of the category of limited real

rights to the land in continental Europe is the result of

centuries of evolution of their legal system and this indicates

complexity of the process of formation of the designated

categories of rights.

Since the current civil legislation of the Republic of

Uzbekistan does not provide the right to building as an

independent property right to land, the experience of foreign

countries in the field of regulation of relations connected with

the right to building deserves a special attention in the

research of the institute of rights to building, as it allows to

reveal its legal entity, characteristic features of it.

In this paper, the following legislation of foreign countries

was selected for comparative analysis:

German law, the system of real rights to the land which is

formed under the influence of pandect law in force in

Germany in the xvi-xix centuries;

Legislation of Austria and Switzerland on real rights to

land, similar to the German system of real rights, as well

as more Romanized legislation of France and Italy [1];

Legislation of the former soviet socialist republics:

Russia, Estonia and Ukraine, representing an independent

direction in the formation of the real right systems [2].

It should be noted that the legal construction of rights to

building in Germany is of great interest, since the legal

tradition in Germany is especially close to our legal system.

In foreign legal systems provisions of the right to building are

set as special laws (in Germany the Regulation on the Law of

Succession of Building of 15 January 1919 [3], in Austria the

Law on the Right to Building of 26 April 1912 [4], in Estonia,

the Law of Property Act of 9 June 1993 [5]) and codified

regulatory enactments (in Switzerland [6], Italy [7], France [8],

Ukraine [9]).

The content of the hereditary rights to building under the laws

of Germany is that the right to a plot of land can be limited,

so that the one in whose favor the limitation is carried out

enjoys alienable and hereditary right to have the structure

above or below the surface of the land (§ 1 of the German

Regulation on Succession of Building Rights).

Similarly worded definition of the right to buildings is

provided in § 1 of the Law of Austria on the Right to Building

and in paragraph 1 of Article 241 of Estonian Law on Rights

in Things. It would be interesting to note that these features of

the right to building, characteristic of Roman superficies as

transferability and heritability, according to Swiss Law may

be excluded by the parties while making an agreement on the

establishment of the right to building. Paragraph 2 of Article

779 of the Swiss Civil Code states that if the contract does not

specify otherwise, the right to building is an alienable and

inheritable.

The mentioned provision, as I believe, is because that Swiss

law considers the right to building as a kind of personal

servitude along with such rights as usufruct, right to

residence, right to access to drinking water sources. Personal

servitude does not attribute alienability and the possibility of

their transfer by inheritance, as traditionally, personal

servitude belonged to a particular person individually [10],

consequently, could not be transferred or pass to another

person by inheritance. Perhaps, following the classical


48

principle of alienability and impossibility of transfer of

personal servitude in a hereditary way, determining the right

to building as a kind of personal servitude, the Swiss

legislator provided contracting parties with the right to

exclude the alienability and heritability of rights to building [11].

Unlike Switzerland, in other laws of foreign countries being

investigated, the right to building serves as an independent

kind of rights, and does not apply to other kinds of real right.

According to the legal nature of the law of considered states,

the right to building is a limited real right to somebody else’s

land. At the same time for German researchers the right to

building features dual building rights: on the one hand, this is

a limited real right, on the other hand, the encumbrance of

plot of land [12].

The grounds of emergence of the right to building and

characteristic features of the right to building will be

considered.

The basis for the initial establishment of the right to building

in accordance with the legislation of all considered countries

in this article is an agreement on the establishment of the right

to building. The Civil Code of Ukraine and, in addition to the

agreement on the establishment of the right to building,

allows the possibility of introduction of the right to building

on the basis of the will (Clause 1, 4, Article 413 of the Civil

Code of Ukraine).

In most other countries the right to building is urgent.

However, in Italy, Estonia and Ukraine the right to building

could be granted for an indefinite period [13].

In characterizing the right to building an important issue is to

determine the nature of the right to building constructed on

the basis of the right to building [14].

Analyzing the nature of the right to building constructed on

somebody else’s plot of land, according to German law, first

of all, it should be noted that in Germany, the only object of

real estate is land [15]. At the same time as a general rule

anything that is positioned above and under the site, follows

the fate of the land (§ 93, § 94 of the German Civil Code).

Objects located above or under the land are in a legal

relationship with the land, the content of which depends on

the type of right, according to which an object on or under the

land, nature and purpose of the construction of the object

(permanently or temporarily) appear [16].

I.A. Emelkina refers to three categories of objects:

1) The essential components of land, which include things

strongly bound to the ground, particularly buildings, as

well as "land food" while they are connected with soil (it

is important to note that these parts cannot be subject to

separate rights); and the rights associated with ownership

of the land, including the hereditary building rights;

2) Temporarily attached items, which include things related

to the land only for temporary purposes ("the imaginary

component"), as well as structures or objects, built on a

land plot of by an eligible person while exercising the

right to somebody else’s land (in property law building

obligations or lease right). The legal regime of

"imaginary components" as a general rule is equal to

movable things;

3) Belongings of land, which are movable things and not

components of the main thing, serve its economic

purpose and thus "are spatial relations with the main

thing." the belonging of land should have a common

destiny with the main thing.

Researching the limited real rights to land, and in particular

the right to building, I.A. Emelkina indicates that the nature

of the right to building, constructed on somebody else’s plot

of land, has long been a subject of discussion of German

scientists. As the author notes, in Germany the following

theory of a possible qualification for the right to building can

be highlighted:

Separated property;

Right of use like a landed servitude;

Rule of forced use of property;

Special ownership of building [17].

According to the theory of property and shared ownership, the

ownership of the land and the ownership of building are

divided as follows: the supreme ownership belonged to the

person who receives the rent, and the subordinate ownership

belonged to the other person. With regard to the right to

building shared ownership theory has been rejected due to the

refusal of supreme and subject property by the pandectists [18].

The reasons for refusal of recognition of rights in things or

personal servitude are as follows:1) a servitude is established

if the dominant and official plot of land, which is not

necessary in determining the right to building; 2) a servitude

has a broader content, whereas on the basis of the right to

building the land can only be used for the construction of the

building and its subsequent exploitation; 3) a servitude a

strictly personal right that cannot be inherited, and it is not

alienated, as opposed to inherited and alienated right to

building [19].

Application of the theory of enforcement is impossible, as

"the right to building grants the right to use the land, and the

owner's requirements for the builder are provided by the other

right a pledge of property" [20].

The theory of the recognition of property rights was rejected

because the grounds "that it is contrary to the state of

changing of structure into a plot of land, accordingly, on the

grounds of impossibility of presence of two rights for the

owner" [21].

At the same time, the approach that the builder has a special

ownership of the structure was the basis for the formation of

modern theoretical design and building rights in Germany [22].

The essence of this construction is as follows: (1)

constructing for the duration of the right to building is

recognized an essential part of the right to building, which is

an exception to the general rule, according to which the

structure is an essential part of the land, and (2) the real estate

regime extends to the law of building, which allows

transferring the right to building to the mortgage.

It should be noted that some scholars differently explain the

reasons for relating a construction, built on the basis of the

right to building, by German law into a category with the

essential part of the right to building for the duration of the

right to building.

E.A. Leonteva points out that such a decision associated with

the fact that the legislator gives preference to the interests of

the owner of the buildings before the interests of the land

owner [23]. Extension of the legal regime of a substantial part

to somebody else’s things connected with the plot of land

would appear legitimate injustice [24].

According to I.A. Emelkinoy, structure erected on the basis of

the right of the building is considered an essential part of the


49

right to building to eliminate the recognition of the structure

of movable property, by virtue of the provisions of that

building in a strange land acquires the status of movables (as

happens when renting). The recognition of the structure as a

movable property would prevent the possibility of

transferring the structure to obtain a mortgage and

construction lending [25].

E.A. Sukhanov justifies a rule provided by § 12 of the Law on

the German Regulation on building succession saying that the

building erected on somebody else’s plot of land on the right

to building, it is considered an integral part of the law, but not

a plot of land as follows: "This exemption from the general

rule was made intentionally in order to develop housing

construction after World War I, in condition when the

developers could not buy land plots in their property due to

their high cost, but also did not want to pass their constructed

houses in the property of landowners" [26].

Following the model of German law the fate of the building,

which is built on the basis of the right to building, is

determined in Austrian, Swiss and Estonian Law. Despite the

fact that, unlike German Law, in these countries there is no

clear division of objects located on the plot of land and under

it, the significant components and temporarily attached

things, nevertheless similar to German law:

A plot of land is considered as a single real estate object;

As an exception to the general rule, according to which

the building erected on the land plot is a part of the land

plot, during the period of the right to building a structure

is considered to be an integral part of the right to building,

but not the land plot (This exception causes another

exception to the general rule, according to which

everything that is located on or under the land plot,

belongs to the owner of the land [27]);

As a result of legal fiction of permitted by the legislator

the real estate regime extends to the right to building [28].

Thus, according to the laws of Germany, Austria,

Switzerland, Estonia, a structure, being a part of the right to

building, follows its legal destiny and in the case of

alienation, mortgage and civil circulation is not involved as a

separate legal object.

On the contrary, according to the laws of France, Italy,

Ukraine, a building erected on somebody else’s plot of land

on the basis of the right to building is an independent legal

object. Moreover, being an independent subject of law, this

structure is in the period of the effect of rights to building.

Upon expiry of the right to building, as established by a

peremptory norm of clause 3, § 12 of the German Regulation

on the hereditary right to building erected by builder, the

building becomes a part of the land, and the owner of the land

plot by the principle of increment the right to building

ownership constructed on his land plot emerges. This

imperative norm is also provided by the legislation of Austria,

Switzerland, and Italy.

French legislation does not prescribe mandatorily transfer of

ownership of the building erected on the right to building to

the owner of the land at the termination of the right to

building, and allows the parties to agree otherwise. This

legislation does not specify what other variants of the fate of

structure parties may provide. In the event that contracting

parties do not set out the legal consequences of the

termination of the right to building in the contract, at the end

of the right to building, the building erected on the basis of

the right to building, in my opinion, becomes the property of

the land owner by virtue of the established increment

principle in the legislation of France. As in other countries

under consideration, the French rule establishing the principle

of incremental makes it an exception for the period of the

rights to building, without providing ownership of the

building erected in the force of building law to the owner of

the land.

Pursuant to Estonian law, the fate of structure is determined

not by the two parties to the contract, but only one party - the

owner of the land, which decides whether or not after the

expiration of the right to building the structure is transferred

to the owner of the land for appropriate compensation or

structure is subject to dismantling and removal. As we can

see, in Estonia options for possible legal consequences of the

termination of the right to building are legally established.

It is interesting to note that neither of these two options of

consequences of termination of the right to building does not

allow for the transfer of ownership rights to the builder by the

force of the right to building. The specified thing seems

logical. Exceptions to the general rule, according to which the

building located on the land is an integral part, as well as the

rule that establishes that all located on or under the land is the

property of the person who owns the rights to land, are

allowed by Estonian legislation only for the period the term of

the right to building. Upon termination of the right to building

the building becomes a part of the land, and by virtue of the

principle of incremental the owner of the building on the land

can only be the land owner.

The fate of buildings upon expiry of building rights is

ambiguously defined in the Civil Code of Ukraine. Parties

have the right to determine the legal consequences of the

termination of rights (Paragraph 1, Article 417 of the Civil

Code of Ukraine), moreover, based on a literal interpretation

of the rule, not at the conclusion of the agreement on the

establishment of the right to building, and in the event of

termination of the right to building [29].

It seems that the establishment by the law the consequences

of termination of the right to building through a peremptory

norm (like German, Austrian, Swiss, Italian laws) or through

a dispositive norm, but with an indication of a closed list of

possible legal consequences of the termination of the right to

building (such as Estonian law) best meets the purposes of the

stability of civil circulation and observance of the rights and

legitimate interests of both the land owner and builder.

In cases when the building erected on the basis of the right to

building, after the termination of the right to building

becomes the property of the land owner, the question whether

the owner of the land has to pay any compensation for the

building to the builder arises.

In the legislation of Germany, mandatorily established

obligation for the owner of the land to pay the builder at the

termination of the right to compensation for the construction

erected by them on the right to building of construction.

Similar provisions are provided in the legislation of Austria

and Switzerland. At the same time in Germany (for residential

buildings) and Austria (in the case of buildings of any

purpose) legislated even the minimum amount of such

compensation.

The legislation of Ukraine and Estonia gives the parties an

opportunity to determine the presence or absence of the

obligations of the owner of land to compensate the builder for


50

the building on somebody else’s plot of land at the

termination of the right to building, as well as to

independently determine the amount of such compensation [30]

and the form of its payment.

Meanwhile, in Italy and France, there is no provision for

compensation for the buildings constructed based on the right

to building, the transition of ownership of the building to the

owner of the land on the expiry of the right to building. It

seems that the mentioned state, however, must not exclude

the possibility of establishing such compensation by

agreement of the parties.

Upon termination of the right to building in addition to the

question of the fate of the buildings erected by virtue of the

right to building the question whether the builder has the

preferential right to sign the agreement on the establishment

of the right to building for a new term arises. This problem is

solved in different countries differently.

Thus, in German legislation, as well as in Estonian one,

special laws on the right to building it is indicated that the

parties can provide preferential right of the builder to make an

agreement on establishment of the right to building for a new

term. In Germany, the procedure of exercising a preference

for the builder to make an agreement on the establishment of

the right to building a new term is regulated at the legislative

level in the Regulation on the law of building succession, and

under Estonian law procedure of such a right is established by

agreement of the parties.

The legislation of other countries considered in this paper

contains no mention of the possibility of establishing a pre-

emptive right of the builder to extend the right of building for

a new term. This mentioned state, however, does not limit the

possibility of parties to the agreement on the establishment of

the right to building to provide a pre-emptive right and the

procedure for implementation of the agreement concluded on

the establishment of rights to building.

Taking into consideration the situation that the right to

building is provided, as a rule, for a long term absence of the

rules on preferential right to make an agreement on

establishment of the right to building for a new term at the

legislative level, as well as rules on the procedure of the

implementation of this right can be explained as follows.

Upon the expiry of the term of the right to building, often

constituting 99 or 100 years, perhaps this kind of change of

circumstances in which fulfillment of obligation of the owner

to extend the term of the agreement could put it in a very

disadvantageous position. This conclusion can be indirectly

confirmed by the fact that, as previously noted, according to

the legislation of most countries, the right to building is

urgent, lest the land was burdened with the right to building

indefinitely.

Permanent right to building almost always deprives the owner

of the land of owning and using such a plot of land. However,

it is not allowed to neglect that the urgency of rights to

building, may also serve as not only a reasonable deadline for

the encumbrance by rights to building, but also a term of

service of buildings.

Summarizing the above sources, it should be noted that the

model of rights to building in the legislation of Austria,

Switzerland, Estonia, is provided in much the same legal

bases of the hereditary rights to building in Germany.

The generality of the legislative provisions on the right to

building in these countries is reflected in the following.

1) For the duration of the right to building the structure built

through the power of the right to building is an integral

part of the right to building and, accordingly follows its

legal fate;

2) The regime of real estate is applied to the right to

building which allows transferring the right to building,

including its component the building to the mortgage as

an object of real estate.

3) Upon termination of the right to building, construction

erected by virtue of the right to building, becomes a

component of the land plot (in Estonia, however, the land

owner may require the builder to demolish the building).

Legislation of France, Italy and Ukraine, in contrast to the

legislation of Germany, Austria, Switzerland, Estonia,

recognizes the building as an independent object of law

during the period of the right to building erected on its base,

allowing for the builder to have ownership of the building.

The conducted analysis of regulation of relations connected

with the right to building in Germany, Austria, Switzerland,

France, Italy, Estonia, Ukraine, leads to the conclusion that of

the seven countries whose legislation was considered, the

most detailed regulation belongs to Germany’s, but the rules

of the right to buildings in French law, on the contrary, have

the character of guiding principles [31].

In modern current civil law institute of the right to building as

an independent right to someone else’s thing is not directly

mentioned anywhere. As the researchers of property rights to

the land rightly point out, the current Civil Code of the

Russian Federation contains a separate entitlement to building

on someone else’s land, included in the content of other

limited rights in things [32].

In particular, Paragraph 2, Article 266 and Paragraph 2,

Article 269 of the Civil Code of the Russian Federation

provide the right of individuals possessing and using someone

else’s land on the basis of the right of lifetime inheritable

possession and the right of permanent (perpetual) use of land

to erect buildings on it, gaining the right of ownership of

them. Thus, A.A. Makovsky notes that of these two rights to

somebody else’s land really existed and one single right in

things the right of permanent (perpetual) use the land exists [33].

This situation was caused by the fact that by the time of the

adoption of the first part of the Civil Code of the Russian

Federation transition from a planned economy to a market

had not ended. The legal regime and the civil circulation of

land as an immovable on the Soviet tradition was due to the

nationalization of the land and the abandonment of the

category of rights in things [34].

In 2009, the Presidential Council for Codification and

Enhancement of Civil Legislation approved the Concept of

developing civil legislation of the Russian Federation, which

declared the need for interconnected institutions of property

law in the Civil Code of the Russian Federation, expanding

the range of limited rights in things, including the right to

building.

The draft law developed on the basis of the concept provides

for the full perfection of the mechanism of legal regulation of

real estate relations by making changes to the current version

of the Civil Code of the Russian Federation. In particular, the

article of this Bill contains a definition of the right to

building. According to the bill the right to building is the right


51

of possession and use of someone else’s land in order to build

on it a building or structure and its subsequent operation.

Concluding the review of foreign legislation on the right to

building, we note that currently this institution is not

widespread in all countries.

German scientists say that the institution of hereditary

building rights is currently undervalued by the state, despite

the fact that, according to scientists, it could become an

effective tool of the state to manage municipal land use [35],

and achieve by the help of certain political and social

purposes [36] (by meeting the housing needs of the needy

category of the population with the provision of certain

guarantees).

While the State is a major owner of land, it almost does not

provide it for private individuals to possess and use based on

the hereditary rights to building, the Church in Germany

appears to be a significant figure in the market of the

hereditary rights to building [37], making an agreement with

the members on establishment of a hereditary rights to

building. In German legal literature, one opinion is put

forward that in Germany the common practice of presenting a

plot of land to the church based on the hereditary right to

building is due to the fact that churches have a huge territory

and there is a ban on the sale of church lands.

The institute of Law on building in France now is not in

demand. Modern researchers suggest that this situation is

caused by French law providing unrestricted freedom of the

parties on many issues which in other countries regulated by

law. French lawyers believe that the norms concerning

building rights in Housing and Communal French Code have

the character of guiding principles of building [38]. The above

mentioned state may be regarded by potential builders as a

negative factor for long-term relationships.

In the 1990 in Italy, right of superficies was widespread for

the construction with governmental support; however, as

noted by the researchers of rights in things in Italy, currently

Italy’s public authorities are seeking to find other ways to

provide housing for the needy category of the population [39].

While hereditary right to building in Germany and right to

building in France and Italy are not widely used in modern

civil circulation, in Estonia the institute of rights to building,

on the contrary, has become one of the most popular

institutions of civil law, resulting in some competition for the

right to ownership, [40] which is confirmed by statistics of the

Centre of registers and information systems of Estonia.

In our view, upon assessing the possibility of introducing the

institute of the rights to building into national civil law, which

has existed since the Roman law, and are used in various

national legislation of the countries of continental Europe it

should be noted that it is unacceptable to completely copy

their legal structures. It is only necessary to use the principles

on which this institution exist in the most developed

European countries in order to improve the system of rights in

things to a plot of land.

References

1. The main difference between these classifications, as I.A.

Emelkina notes, is that pandectists are based not only on

acquired from Roman law, but also on national

institutions, created under the influence of the actual

needs of life. French Italian system of real rights is based

for the most part on the provisions of Roman law (see:.

Emelkina I.A. The system of real rights to land in the

Russian law and some foreign legal systems. //

Законодательство. 2010; 12:24.

2. Емелькина ИА. Система вещных прав на землю в

российском праве и некоторых зарубежных

правопорядках. 25.

3. As of 08.12.2010: Startseite - KostenfreieInhalte –

Erbbau RG- GesetzüberdasErbbaurecht. URL:

https://connect.juris.de/purl/gesetze/ErbbauV.

4. As of 01.12.2010: Baurechtsgesetz (BauRG). URL:

http://www.jusline.at/ Baurechtsgesetz (BauRG). html.

5. Existing laws of the Republic of Estonia: Private law -

Law of Property Act.URL:

http://www.rup.ee/rus/zakony#a33.

6. Swiss Civil Code in German. System requirements:

Adobe Acrobat Reader. URL:

http://www.admin.ch/ch/d/sr/2/210.de.pdf; Swiss Civil

Code in English: Homepage – Legislation – Swiss

Legislation – SR 210 Swiss Civil Code.

URL:http://www.admin.ch/ch/e/rs/210/index.html.

7. The Cardozo Electronic Law Bulletin – Il Codice

CivileItaliano. URL:

http://www.jus.unitn.it/cardozo/obiter_dictum/home.htm.

In Italy, the right to building is called the right of

superficies.

8. Codes Pour Droit.org - Code de la construction et de

l'habitation. System requirements:

AdobeAcrobatReader.URL:

http://perlpot.net/cod/construction_habitation.pdf. «Bail

àconstruction» is translated Verbatim as «building lease».

However, this right is not a lease in its classical sense

(liability law) and it refers to rights in things (Real

Property Law and Procedure in the European Union.

GeneralReport - P. 22. System Requirements:. In

connection with what has been said (in order to avoid no

consistency in terms rated unit), author further uses the

term "right to building" to mean «bail à construction».

9. The Verkhovna Rada of Ukraine: the Code of Ukraine.

URL: http://zakon1.rada.gov.ua/cgi-

bin/laws/main.cgi?nreg=435-15.

10. Новицкий И.Б. Основы римского частного права. М.:

Зерцало, 2007, 105.

11. It is worth noting that this exception to the general rule of

not alienability of personal servitude is established by the

Swiss Civil Code in respect of this type of personal

servitude, as the right to access to drinking water sources.

As well as the right to building, according to Swiss law,

the right to access to drinking water sources is

transferable and inheritable, unless otherwise provided by

agreement of the parties. At the same time the usufruct

and according to the Swiss Civil Code, the right of

residence cannot be alienated and transferred by

inheritance under any circumstances.

12. Oertmann P. called the right to building, noting the

property of its nature, the two-faced Janus (см. Oertmann

P. Erbbaurecht und hypothekarische Belastung //Max-

Planck-Institutsfür Europäische Rechtsgeschichte 2010-

09-05T15:29:20Z. Archivfürbürgerliches Recht. Bd. 20.

1902, 184.

13. According to the legislation of Ukraine, a plot of land of

state or communal ownership cannot be granted for an


52

indefinite period. These lands are given for the

construction for a period not exceeding 50 years.

14. The problem of determining the legal nature of the right

to building in laws of foreign countries is discussed in

detail by I.A. Emelkina. (Емелькина И. А. Система

ограниченных вещных прав на земельный участок. 2-

еизд., исп. и доп. М.: Инфо тропик Медиа, 2013.С.

206–209; Емелькина И.А.Природа права на строение,

возведенное на чужом земельном участке, в свете

изменения гражданского законодательства о вещном

праве // Вестник гражданского права.). 2012; 8:32.

15. It should be noted that the German Civil Code does not

provide the concept of real estate or immovable property,

but uses only such legal categories as "a plot of land and

movables.

16. Емелькина ИА. Система ограниченных вещных прав

на земельный участок. 72.





19. Ibid.

20. Ibid.

21. Ibid.

22. Ibid.

23. Леонтьева Е. А. Концепция единого объекта

недвижимости в германском гражданском праве //

Право. 2011; 2:131.

24. Staudingers J. von. Kommentarzum Bürgerlichen

Gesetzbuch: mit Einführungsgesetz und Nebengesetzen.

Sellier – deGruyter. Berlin, 2000, 588.

25. Емелькина И. А. Система ограниченных вещных прав

на земельный участок. С. 208–209. Staudingers J. von.

Kommentarzum Bürgerlichen Gesetzbuch: mit

Einführungsgesetz und Nebengesetzen. Sellier –

deGruyter. Berlin, 2000, 588.

26. Суханов Е.А. Вещные права и права на

нематериальные объекты // Вестник ВАСРФ. 2007;

7:12.

27. As a result, during the term of the right to building the

legal fate of the land is broken in respect of which the

right to building is established, and buildings erected on

the basis of the right to building.

28. Austrian Law on the right to building clearly indicates

that the legal regime of real estate extends to the right to

building (§ 6). Article 655 of the Swiss Civil Code refers

the following kinds of property to real estate: 1) plots of

land and buildings on them; 2) registered independent

and permanent rights to real estate; 3) mines; 4) share

beyond movables. In Clause 3 of Article 779 of the Swiss

Civil Code it is established that if the right to building

has the character of an independent and permanent right,

then it can be introduced in the land register as

immovable property. Before making changes to Clause 4

of Article 241 of Estonian Law on estate, this article

contained a direct indication that "the right to building is

considered to be immovable." At the same time, Estonia's

legislation has no provisions which would expressly

provide that the right to building is real estate, but, the

real estate regime is applied to the right to building in

Estonia like hereditary building rights in Germany. In

particular, according to Articles 123-126, paragraph 4 of

Article 241 of Estonian Law on Real Estate the provision

of real estate is applied to the right to building and also,

the right under consideration is included to the land

register along with the plot of land, the right to the

apartment building and the ownership of the apartment

(Article 5 of the Law on the Land Register).

29. Provision in Paragraph 1, Article 417 of the Civil Code

of Ukraine stipulates that "in the event of termination of

the right to use the land on which a construction is built,

the land owner and the owner of the building determines

the legal consequences of such termination, and if the

parties fail to reach agreement, the owner of the land has

the right to require the building owner to demolish the

construction erected on the basis of the right to building

and bring land back to the state in which it was granted.

Moreover, Paragraph 2, Article 417 of the Civil Code of

Ukraine establishes an exception to the general rule about

the demolition of buildings unless the parties have agreed

on the legal consequences of the termination of the right

to building. Thus, in cases that demolition is prohibited

by law (homes, places of interest of history and culture,

and so on.) or significant excess of the cost of building

value over the cost of the land to no purpose, the court,

taking into account the grounds for termination of the

right to building, can decide on the repurchase of the

owner of the land where the building is placed, or the

redemption of the building to the owner of land plot or

determination of the conditions to use by the land owner

of the building for a new term.

30. For residential buildings Estonian Law on Rights in

Things Act sets a minimum limit of the amount of

compensation equal to 2/3 of the cost of rights to

building.

31. Fabre MC. La vente du terrain au preneur en fin de bail a

construction (aspects juridiques, administratifs et

fiscaux). 8.

32. Копылов АВ. Вещные права на землю в римском,

русском дореволюционном и современном

российском гражданском праве. С. 159; Василевская

Л.Ю. Вещные сделки по германскому праву

(Методология гражданско-правового регулирования):

дис. д-ра юрид. наук. М., 2004. С. 378; Емелькина

И.А. Вещные права в проекте изменений

Гражданского кодекса РФ// Гражданское право. 2011;

1: 47.

33. 1 Маковская А. А. В распоряжении участников

оборота должна быть необходимая палитра вещных

прав// Закон. 2011. №1. С. 12.

34. Маковский АЛ. Три кодификации отечественного

гражданского права (вместо предисловия, введения и

послесловия) // О кодификации гражданского

права(1922-2006). М.: Статут, 2010, 46.

35. Thiel F. Das Erbbaurecht - ein verkanntes Instrument zur

Steuerung der kommunalen Flächennutzung. UFZ-

Diskussionspapiere. Leipzig, 2004. System requirements:

Adobe Acrobat Reader. URL:

http://www.ufz.de/data/ufz-disk4-20041361.pdf.

36. Löhr D. Ein Bodenfonds für die Ausgabe von

Erbbaurechten als Instrument der Bodenpolitik //

Zentrums für Bodenschutz und Flächenhaushaltspolitik

am Umwelt-Campus Birkenfeld (ZBF-UCB). 2009; 6:28.


53

37. Bonner Städtebauinstitut. Tagung zum Thema‚

Wohneigentum in Ballungsräumen. Königsteiner.

Gespräch. 1998, 34.

38. Fabre MC. La vente du terrain au preneur en fin de bail a

construction (aspects juridiques, administratifs et

fiscaux). 8.

39. Liotta G. Real Property Law – Italy. 5-6.

40. Мелихова А. В. Право застройки по законодательству

Эстонской Республики. Автореф. дис. канд. юрид.

наук: М. 2007, 11.


54


ISSN: 2455-2194, RJIF 5.12



Maintenance and welfare of parents and senior citizens act, 2007: A critical analysis

A Nirmal Singh Heera, N. Prabhavathi

Assistant Professor, School of Law, SASTRA University, Thanjavur, Tamil Nadu, India

Abstract

In recent times, there is phenomenal increase in population of aging. As per the report of the Situation analysis of the Elderly in

India – 2011”, the elderly population aged sixty years and above account for 7.4 percentage of total population in 2001. About 65%

of the aged had to depend on others for their day to day maintenance. The old age dependency ratio climbed from 10.9% in 1961 to

13.1% in 2001 for India as a whole. For females and males the value of the ratio was 13.8% and 12.5% in 2001 – Hence, in this

paper the authors is going to analysis the effect of the provisions of the Maintenance and Welfare of Parents and Senior Citizens

Act, 2007 (Act, 2007) which are enacted for the welfare of the parents and senior citizens in India- Further, the authors is going to

analyse lacunas in the existing legislation.

Keywords: senior citizens, parents, maintenance, liability of children/relative, hindu, christian, muslim, act, 2007

Introduction

Indian society has a long cherished tradition to respect and

protect the elders. It is the pious obligation of the siblings to

maintain their parents and grandparents. The great saint Tamil

poet “Avvaiyar” said “Annaiyum Pithavum Munnari Deivam”

which means mother and father are the first God known to the

children. Until few decades, in the past, these traditions,

heritage and moral values were taught at the schools as part of

curriculum. Since, the children learnt these invaluable tenets, in

their childhood, it was not required to remind them of their

obligation towards the elders, by making any law to respect

and protect them. In recent years, under the guise of preparing

the younger generation to compete globally in knowledge

sharing and employment, we have gradually removed the

moral studies from the school curriculum. On the other side of

the coin, when the joint family system was in prevalence, the

grandparents, in order to at-least while away their time, used to

tell moral stories to their grandchildren.

“Patti Kathaigal” / “Grandmother's stories” played a major role

to imbibe good qualities in the children. Now joint family

system has also slowly faded away. As a result, the children

hardly have the golden opportunity of learning moral values

from the elders also. As a consequence, we have witnessed

crimes by juvenile delinquents on the increase. Even the

Government is forced to amend the Juvenile Justice (Care

and Protection) Act to treat the Juveniles on par with adults in

respect of certain heinous crimes. Feeling of togetherness has

vanished. Love and respect for the elders have diminished.

Some, among the younger generation, do also forget to

maintain their parents. They are left in the lurch in the evening

of their life. So, the Government had to think of converting the

pious obligation to maintain the parents as a legal obligation.

Thus, for the first time in the Code of Criminal Procedure,

1973, provision was made for payment of maintenance to the

parents who are unable to maintain themselves. Though a claim

for maintenance is in the nature of a civil claim, the said

provision was inserted in the Criminal Procedure Code thereby

giving jurisdiction to Judicial Magistrates hoping that it would

be less expensive and speedy. But in course of time, the hope

was belied. The aged parents continue to suffer. Many of them

have to spend their life in old age homes.

Taking note of the above hard realities, in order to make the

procedure easier, less expensive and to be on fast track, the

Government has brought into force a completely new

legislation viz., "The Maintenance and Welfare of Parents and

Senior Citizens Act, 2007". With the above introduction as

pointed by the Hon’ble Madurai Bench of the Madras High

Court in M.Venugopal Vs District Magistrate cum District

Collector and Anr [1], the authors are going to analyse the

provisions of the above Act in the light of various provisions

available under the various Acts at present.

Objective of the Research Paper

To identify the benefits available under the Act, 2007

To identify the liability of children

To compare the provisions of the Act, 2007 along with the

provisions of the other laws

To identify the lacunas in the existing legislation

To make suggestion for the effective implementation of the

Act, 2007.

Object of the Act, 2007

The object of the Act is to provide for more effective

provisions for the maintenance and welfare of the senior

citizens guaranteed and recognised under the Constitution and

for matters connected therewith or incidental thereto. The

Constitution of India under Article 41 mandates “the state to

make effective provision for securing the old age”. Article 46

also states that “Promotion of educational and economic

interests of ….other weaker sections: The State shall promote

with special care …. of the weaker sections of the people, and

shall protect them from social injustice and all forms of

exploitation”.

Maintenance under Personal Laws

Liability of Hindu Children to maintain their aged parents

The Hindu Adoption and Maintenance Act, 1956 under Section

20 deals with Maintenance of … aged parents. Sub section (1)


55

of Section 20 says “Subject to the provisions of this section, a

Hindu is bound, during his or her lifetime, to maintain his or

her ….aged or infirm parents. Further, sub section (3) says

“the obligation of a person to maintain his or her aged or

infirm parent ….extends in so far as the parent [2] ….is unable

to maintain himself or herself out of his or her own earnings or

other property.

Liability of heirs of the deceased Hindu to maintain their

aged parents

Section 21, while defining the term “dependants [3]” also

speaks about the liability of the relatives under Section 22, to

maintain the parents of the deceased son or daughter to the

following extent:

“22. Maintenance of dependents:-

1) Subject to the provisions of sub-section (2), the heirs of a

deceased Hindu are bound to maintain the dependents of

the deceased out of the estate inherited by them from the

deceased.

2) Where a dependent has not obtained, by testamentary or

intestate succession, any share in the estate of a Hindu

dying after the commencement of this Act, the dependent

shall be entitled, subject to the provisions of this Act, to

maintenance from those who take the estate.

3) The liability of each of the persons who take the estate shall

be in proportion to the value of the share or part of the

estate taken by him or her.

4) Notwithstanding anything contained in sub-section (2) or

sub-section (3), no person who is himself or herself a

dependent shall be liable to contribute to the maintenance

of others, if he or she has obtained a share or part, the value

of which is, or would, if the liability to contribute were

enforced, become less than what would be awarded to him

or her by way of maintenance under this Act.

As per the above provision, the heirs of a deceased Hindu are

bound to maintain the dependents of the deceased out of the

estate inherited by them from the deceased. So, if a Hindu son

or daughter who is having the obligation to maintain their

parents dies leaving his aged parents and his or her son or

daughter who is not a minor, the son or daughter as the case

may be, having the obligation to maintain their grandfather or

grandmother to the extent they are inheriting the property from

their deceased parents. On the other hand, if the son or

daughter of the deceased has not obtained any share in the

estate of a Hindu dying after the commencement of this Act,

the aged parents as a dependant, shall be entitled to

maintenance from those who take the estate and not from the

son or daughter of the deceased son or daughter as the case

may be.

The liability of relatives to maintain their aged relatives shall

be in proportion to the value of the share or part of the estate

taken by them. Suppose, if the son or daughter or heirs or

relative are themselves is a dependant, then the above

obligation shall not apply.

Under section 23 certain criteria has been mentioned subject to

which the Courts are having discretionary power to grant

maintenance. The above legal provisions deal with the rights of

the parents alone and not about the senior citizens as mentioned

in the Act, 2007.

Further, the things to be noted here is the above provisions are

applicable to Hindus only and not to other religious sector [4].

Liability of Muslim to maintain their aged parents and

relatives

The term “maintenance” under the Muslim Law, is called as

‘nafaqa’ which means “what a person spends over his family”.

Hedaya defines ‘maintenance’ as all those things which are

necessary to the support of life such as, food, clothes and

lodging.

There are three causes for which it is incumbent on one person

to maintain other: – (i) marriage, (ii) relationship and (iii)

property. The highest obligation arises on marriage; The

second class of obligation arises when certain person has

‘means’ and another is ‘indigent’. It is true that the obligation

to maintain one’s children is a personal obligation. The

obligation to maintain one’s aged and infirm parents arises

only if one is in easy circumstances and the parents are

destitute. The obligation to maintain other relations arises only

if one is in easy circumstances and the relations are poor, and

it extends to only those relations who are within the degree of

prohibited relationship and then too, only in proportion to the

share one would inherit from them on their death.

Quantum of maintenance

In fixing the maintenance, the judge in exercising his discretion

should consider the rank and circumstances of both parties.

According to Hedaya, the quantum of maintenance should be

determined on the basis of rank and financial position of both

the parties. Imam Shafii was also of the view that the financial

position of both the parties should be taken into consideration.

Maintenance of parents

As the parents are under an obligation to maintain their

children as stated above, so are the children are liable to

maintain their parents. Every child whether male or female,

adult or minor, who has sufficient property, is responsible to

provide maintenance to their parents.

Maintenance of grandparents

A person is bound to maintain his paternal and maternal

grandfathers and grandmothers, if they are poor and not

otherwise to the same extent as he is bound to maintain his

poor father.

Maintenance of other relations

Persons who are not themselves poor are bound to maintain

their poor relations within the prohibited degrees in a

proportion to the share which they would inherit from them on

their death.

Liability of Christian and Parsi to maintain their aged

parents and relatives

There are no personal laws for Christian and Parsis for

providing maintenance to the parents. The parents who wish to

claim maintenance form their children have to approach the

Court of law under Section 125 of Code of Criminal Procedure,

1973.

Analysis of Maintenance and Welfare of Senior Citizens

Act, 2007

Meaning of Maintenance

According to Section 2(b) of the Act 2007, “Maintenance”

includes provision for food, clothing, residence and medical


56

attendance and treatment [5]. The term “welfare” has been

defined under section 2 (k). According to which, “welfare”

means provision for food, health care, recreation centres and

other amenities necessary for the senior citizens. “Parent”

means father or mother whether biological, adoptive or step

father or step mother, as the case may be whether or not the

father or the mother is a senior citizen [6]. “Senior citizen”

means any person being a citizens of India, who has attained

the age of sixty years or above [7]. As per Section 2 (g) of the

Act, 2007, “relative” means any legal heir of the childless

senior citizen who is not a minor and is in possession of or

would inherit his property after his death.

Maintenance of parents and Senior citizens

Who can make an application?

Under section 4 of the Act, 2007,(i) the parents or senior

citizens who is unable to maintain themselves from their own

earning or out of property owned by them, shall be entitled to

make an application against their one or more of his children

who is not a minor or against, in case of senior citizens, his

relative. (ii) In case, where senior citizens or parents are unable

to file a case, they can authorize any other person or

organization to file the case or (iii) the Tribunal is itself may

take the case as suo moto [8]. To make the application under

this section, the applicant has to prove any one of the two

essential conditions. i.e., (i) unable to maintain themselves

from their own earning or (ii) unable to maintain themselves

out of property owned by them. Whether the parents or senior

citizens who is not earning or not having own property is

eligible to claim maintenance under this Act?

In M.Venugopal Vs District Magistrate cum District Collector

and Anr [9], the Madurai Bench of the Madras High Court

observed that “A senior citizen, including parents, will be

entitled for maintenance only if he/she satisfies the

requirements indicated in sub-section (1) of Section 4. The said

provision states that a senior citizen, including parent, shall be

entitled for maintenance, only if he is unable to maintain from

his own earnings or out of the income from the property owned

by him. These two are factual aspects which are to be proved

before the Tribunal. Unless maintenance is asked for in the

petition by stating either both or any one of these

contingencies, it will not afford an opportunity to the

respondent to either admit these facts or to deny the same and

thereafter to prove his stand.

The application filed under this section shall be disposed of

within a period of sixty days from the date of the service of

notice of the application to such person. For the reasons to be

recorded in writing, this sixty days period may be extended, by

the Tribunal, upto one more period of thirty days in exceptional

circumstances [10]. Where a maintenance order was made under

this Act against more than one person, the death of one of them

does not affect the liability of others to continue paying of

maintenance [11]. The Tribunal is having the power to order for

maintenance or the expenses for the proceeding from the date

of the order or from the date of the application.

Failure to comply with the order

If any person against whom the order for maintenance or of

expenses of the proceeding ordered, failed to comply with the

order, without sufficient cause, for every breach of the order

the Tribunal, issue a warrant for levying the amount ordered

and may sentence the defaulter for the whole or any part of the

each month’s allowance for the maintenance or expenses of the

proceedings, remaining unpaid after the execution of the

warrant, to imprisonment for a term which may extent to one

month [12]. The things to be noted here is, to issue the warrant

under this provision, application should be made, within a

period of three months from the date on which the amount

becomes due, to the Tribunal to levy the amount [13].

Ex parte order

Where any children or relative against whom the order for

maintenance is proposed to be made, is willfully avoiding the

service or willfully neglecting to attend the Tribunal, the

Tribunal may proceed to hear and determine matter ex parte,

by taking evidence of the applicant and making such other

enquiry as it deem fit [14].

Whether this Act is applicable for the persons/relatives

residing outside the territory of India?

Chapter – I of sub section (2) of Section 1declare that this Act

is also applicable to Citizens of India outside India. Further,

Section 6 (5) also deals with the procedure for the service of

summons. It say “where the children or relative is residing

outside India, summon should be served by the Tribunal

through such authority as the Central Government specify in

this behalf”. The Central Government appointed Director,

Social Defence Ageing in the Ministry of Social Justice and

Empowerment, New Delhi to act as a nodal authority through

whom summons shall be served by the Tribunal to the children

or relative of the parents or senior citizens who are residing

outside India [15].

Establishment of Tribunal

Under Section 7(2) of the Act, 2007, the Tribunal is presided

over by an officer not below the rank of Sub Divisional Officer

of a State. In the state of Tamilnadu, the Tribunal is presided

over by Revenue Divisional Officer (R.D.O). The Tribunal

may order for maintenance for an amount of not exceeding

Rs.10,000/- per month [16]. Any senior citizens or a parent

aggrieved by the order of a Tribunal may prefer an appeal to

the Appellate authority, within a period of sixty days from the

date of the order [17]. If sufficient cause is shown for not

preferring the appeal within sixty days, the appellate Tribunal

may entertain the appeal even after the expiry of the sixty days

time limit [18]. The Appellate Tribunal shall be presided over by

an officer not below the rank of District Magistrate [19] (District

Collector). A close reading of section 16 shows that the right of

appeal is not available to the children or relatives. In

M.Venugopal Vs District Magistrate cum District Collector

and Anr [20], it has been observed that “right of appeal is a

creature of statute and unless there is a specific provision made

for appeal, such right of appeal cannot be readily inferred”.

Citing the case in N. Kannadasan Vs. Ajoy Khose and others,

reported in 2009 (7) SCC 1, the Judge viewed that the missing

of the words “aggrieved child or relative” in Section 16 of the

Act is only an unconscious omission by the Parliament. By

applying the principle of casus omissus, the Court held that

such a right of appeal is available for the aggrieved

son/daughter/relative as well. Further, the Judge observed as

follows:

“I only hope that the law makers would take note of this

anomaly and rectify the defect in the drafting of Section 16 of

the Act”. With respect to this provision the Panjab and Haryana


57

High in Paramjit Kumar Saroya vs the union of India and

another [21] r, also gave the same opinion. The Court observed

as follows:

“It is a case of an accidental omission and not of conscious

exclusion” accordingly the Court held that Section 16(1) of the

said Act is valid, but must be read to provide for the right of

appeal to any of the affected parties.

Protection of Life and Property of Senior citizens

For the protection of life and property of senior citizens, the

Act, 2007 under section 23 describe as follows:

Transfer of property to be void in certain circumstances:

1) Where any senior citizen who, after the commencement of

this Act, has transferred by way of gift or otherwise, his

property, subject to the condition that the transferee shall

provide the basic amenities and basic physical needs to the

transferor and such transferee refuses or fails to provide

such amenities and physical needs, the said transfer of

property shall be deemed to have been made by fraud or

coercion or under undue influence and shall at the option of

the transferor be declared void by the Tribunal.

Under this section, if the senior citizens transfer his

property by way of gift or otherwise with a condition that

the person who receives the property, has to provide basic

amenities and basic physical needs to the transferor and if

the person who received the property fails to fulfill the

condition as already stipulated, the transfer of the property

shall be deemed to have been made by fraud or coercion or

under undue influence and such transfer shall be declared

void by the Tribunal, provided the transferor has to exercise

this option to declare the transaction as void.

In M.Venugopal’ s case (supra), The Madurai Bench of

Madras High Court held that the expression “otherwise”

employed in sub Section 1 of Section 23 should be liberally

interpreted to include even transfer of possession but, such

transfer of possession should be on condition of providing

basic amenities and physical needs. But, the High Court of

Kerala in Radhamani and Ors. Vs. State of Kerala and Ors [22] held that “the condition referred in Section 23 has to be

understood based on the conduct of the transferee and not

with reference to the specific stipulation in the deed of

transfer. Thus, it is not necessary that there should be a

specific recital or stipulation as a condition in the transfer

of deed itself. This condition mentioned in Section 23 is

only referable as a conduct of the transferee, prior to and

after execution of the deed of transfer. Thus, challenge

based on the ground that there is no reference in the recital

of deed that transferee will provide basic amenities and

physical needs to the transferor is of no consequence”. The

Court further observed that the object of section is that

transferee is bound to provide all provisions of welfare

measures as understood as referable to the word "welfare"

under Section 2(k) of Senior Citizens Act. The above view

has been affirmed in Shabeen Martin and ors Vs Muriel

and Ors [23].

2) Where any senior citizen has a right to receive maintenance

out of an estate and such estate or part thereof is

transferred, the right to receive maintenance may be

enforced against the transferee if the transferee has notice

of the right, or if the transfer is gratuitous; but not against

the transferee for consideration and without notice of right.

3) If, any senior citizen is incapable of enforcing the rights

under sub-sections (1) and (2), action may be taken on his

behalf by any of the organisation referred to in Explanation

to sub-section (1) of section 5.

Option regarding Maintenance in certain cases

Under Section 12 of the Act, 2007, an option has been given to

the parents or senior citizen to claim maintenance even under

Section 125 of Code of Criminal Procedure, 1973. But, not

under both the Acts.

Comparison of Section 125 of Cr.P.C and Section 9 of the

Act, 2007

Section 125 of Cr.P.C does not put any limit for the

maintenance, whereas under the Act, 2007, the maximum limit

of maintenance to be awarded is fixed as 10,000 [24]/-. Since

there is specific bar in section 12, they cannot claim more than

10,000/- repress. If they want to get more amount of

maintenance under the Code of Criminal Procedure, the more

expeditious remedy available under the Act, 2007 will be

precluded.

Suggestions and Conclusion

According to a report titled “Situation analysis of the Elderly in

India – 2011” released by Central Statistics office Ministry of

Statistic and Programme Implementation, In India, as a result

of the change in the age composition of the population over

time, there has been a progressive increase in both the number

and proportion of aged people. The proportion of the

population aged 60 years or more has been increasing

consistently over the last century, particularly after 1951. In

1901 the proportion of the population aged 60 or over of India

was about 5 percent, which marginally increased to 5.4 percent

in 1951, and by 2001 this share was found to have risen to

about 7.4 percent. About 75% of persons of age 60 and above

reside in rural areas. The size of the elderly population has

risen from 12.1 million in 1901 to approximately 77 million in

Census 2001. According to official population projections, the

number of elderly persons will rise to approximately 140

million by 2021. Therefore, to protect the welfare of the

parents and senior citizens “an unambiguous legislation is

better than thousands of ambiguous legislation”.

Because, having more than one legislation would lead to

absurdity rather than clarity.

Based on the above analysis, the authors would like to suggest

the following:

i) The Tribunal or the Appellate Tribunal may be presided

over by a legally trained person for the reasons mentioned

in the M.Venugopal’s case (Supra).

ii) A new clause to be added in Section 16 (1): Namely 16 (1)

(i) “any children or relative as the case may be, aggrieved

by an order of a Tribunal, may within sixty days from the

date of the order prefer the appeal, subject to the condition

that they should pay the amount awarded by the Tribunal to

their parents or senior citizens as the case may be, to the

appellate authority”.

iii) The section 16 (6) may be subsisted as “the Appellate

Authority shall disposed of the appeal within one month of

the receipt of the appeal”, instead of “the Appellate

Authority should make an endeavour to pronounce its order

within one month of the receipt of the appeal”. Because we

have to give prime importance to the senior citizens

including the parents.


58

iv) With respect to section 17, there is similar provison in the

Family court Act, 1984. in Smt. Lata Pimple Vs The Union

of India And Others [25], the Bombay High Court by

referring various judgments held that “Now it is well-

settled that apart from the provisions of Art. 22(1) of the

Constitution, no litigant has a fundamental right to be

represented by a lawyer in any Court. The only

fundamental right recognised by the Constitution is that

under Art. 22(1) by which an accused who is arrested and

detained in custody is entitled to consult and be defended

by a legal practitioner of his choice. In all other matters, i.e.

suits or other proceedings in which the accused is not

arrested and detained on a criminal charge, the litigant has

no fundamental right to be represented by a legal

practitioner." It is open to the legislature to put restrictions

on such representation by legal practitioner, having regard

to the aims and object of the Act. On an identical issue the

Supreme Court in Lingappa Pochanna Appelwar and Ors.

v. State of Maharashtra and Anr. Etc [26], reiterated the

same principle, the Court further observed. Hence section

17 does not require any re consideration.

v) With respect to Section 23, the author with due respect,

accept the view given by the Hon’ble High Court of Kerala

in Radhamani’s case (Supra).

vi) To give effective implementation, awareness should be

created among the ageis and Parents.

References

1. WP. (MD)No.13733 of 2012 available at:

https://indiankanoon.org/doc/91169080/.

2. According to the explanation, in this section parent

includes a childless stepmother.

3. Section 21: For the purposes of this Chapter dependents

mean the following relatives of the deceased- (i) his or her

father; (ii) his or her mother; for details see section 21 of

the Hindu Adoption and Maintenance Act, 1956.

4. See: Section 24 of the Hindu Adoption and Maintenance

Act, 1956.

5. See also: Section 3(b) (i) of the Hindu Adoption and

Maintenance Act, 1956.

6. Section 2(d) of the Act, 2007.

7. Section 2(h) ibid.

8. Section 5 of the Act, 2007.

9. WP. (MD) No. 13733 of 2012 available at:


10. Section 4(4) of the Act, 2007.



13. Proviso to section 5 (8) of the Act, 2007.

14. Rule 6 of the Tamil Nadu Maintenance and Welfare of

Parents and Senior Citizens Rules, 2009.

15. The Gazette of India, Extraordinary, Part –II, Section 3 –

sub section ii, New Delhi, June 22, 2011.



18. Proviso to Section 16.

19. Section 15(2) of the Act.

20. WP (MD) No. 13733 of 2012 available at:


21. Date of decision:-28.05.2014.

22. MANU/KE/2493/2015 = 2016 (1) KLT 185.

23. WA. NO.1851/2016; Dater of Judgment: The 2016.

24. See Section 9(2) of the Act, 2007.

25. Equivalent citations: AIR 1993 Bom 255, (1993) 95

BOMLR 311.

26. Equivalent citations: 1985 AIR 389, 1985 SCR (2) 224.


59


ISSN: 2455-2194, RJIF 5.12



Observing international commutative contracts and the damage of postpone in rendering properties in

the 1980 Convention and comparing it with Iran Civil law

1 Ali Janipoor, 2 Behnam Akbari

Department of law, Yasooj branch, Islamic Azad University, Yasooj, Iran

Abstract

Commutative contracts are one of the most common and important legal acts. Therefore, a main section of articles of various legal

systems is about it. This diversity of systems resulted in various regulations which, in the lack of unified regulations, resulted in

problems for contract parties in international commerce. In regard of this discussion about commutative contracts, the damage of

postpone of rendering properties should be noted; this issue became more important in the years after the revolution in our country

and various positions have been taken by jurisdiction about it. The problem which is paid attention to by commutative contracts

parties from long ago is the responsibilities of property damage after making contracts and before rendering it to the costumer. The

problem is that until when sellers have responsibilities regarding properties and in other words when liability is transferred to

costumers. Answers to this issue in various legal systems are not the same. The present study observes the international

commutative contracts comparing to Iran civil law and also damage of delay in rendering properties and consideration in the

international commutative contracts convention (Vienn, 1980) and Iran law. Since Iran has not joined the aforementioned

convention comparing them is necessary and useful.

Keywords: commutative contracts, damage, postpone in rendering, property, consideration

Introduction

Commutative contracts are one of the most common and

important legal acts. Therefore, a main section of articles of

various legal systems is about it. This diversity of systems

resulted in various regulations which, in the lack of unified

regulations, resulted in problems for contract parties in

international commerce.

Since long ago, this kind of contract was considered one of the

most significant commercial acts, so that it could be claimed

that this kind of contract is the mother commutative contract

and source of most commercial transactions like marine,

territorial and aviatic transportations, insurance and etc. the

frequency of commutative contracts comparing with other

businesses resulted in legal systems establishing specific

regulations about commutative contracts. Most of these legal

systems do not consider huge differences between properties

and consideration in commutative contracts and consider some

rules equally obligatory as main conditions for both of them.

With the increase of grounds of economical activities in

international and national domains, the necessity of achieving

rules and principles resulting in stability, facility and

expedition of commercial exchanges were sensed more than

before and this view was accepted that legal terms are

changeable, though founded on the stability principle, and can

change based on time and place.

In addition to changes in the state rules of countries, in recent

decades, cordial understanding was considered absolutely

necessary in lives and seclusion and isolation have become

unbearable. The ever increasing development of international

commerce and the need of countries to novel conditions

because of development of legal relations propelled the

international society to codify integrated regulation s promising

speed, facility and bolstering of international commercial

relationships. In this regard, the Vienne international

commutative contract of properties in 1980 can be pointed out

which is the result of efforts of intellectuals and geniuses of the

world in various legal, political, social, economical and

religious for more than fifty years.

In this regard, the effort of the European commission about

contract rights deserves praise. The European parliament

ratified a resolution in 1989 in order to codify a principle or

European code about private rights. The aforementioned

commission codified the first section of European principles of

contract rights in 1995 and eventually corrected and completed

it in 1997, 1998 and 2000.

Statement of the problem The main problem in this study is understanding and exploiting

whether it is necessary that the rendered property accord with

the one that is sold, or not? This research is based on Iran rules

and the international commutative contracts of property

convention in 1980s.

In Iran legal terms no single recommendation exists in this

regard, but there is unity in regulations. Using the integrated

recommendation of convention, perhaps we can also make a

unity among the dispersed regulations on Iran civil laws.

The convention of UN in 1980 in Vienne about the

international property commutative contracts resulted in

development of international commerce by removing the legal

impediments in trades and had taken a significant step in

coming close to countries with different beliefs and customs.

The problem which is paid attention to by commutative

contracts parties from long ago, is the responsibilities of

property damage after making contracts and before rendering it

to the costumer. The problem is that until when sellers have


60

responsibilities regarding properties and in other words when

liability is transferred to costumers.

The answers to this issue in various legal systems are not the

same. The present study observes the international

commutative contracts comparing to Iran civil law and also

damage of delay in rendering properties and consideration in

the international commutative contracts convention (Vienn,

1980) [23] and Iran law. Since Iran has not joined the

aforementioned convention comparing them is necessary and

useful.

In fact, the difference between the state and international

commutative contracts is not only that one of them has a

foreign element and the other not. There are other differences

distinguishing these two commercial activities from each other,

whether technically, legally or regarding the economical policy

of countries regarding these two kinds of contracts. In this

study we observe the different aspects of this subject and also

explain the loss of rendering about properties and prices

(considerations) in the 1980 convention. Then we compare and

contrast them with the articles in Iran civil law.

The concept of commutative contract and its difference

with exchanges

Commutative contracts are one of the objective contracts that

not only their conditions are their effects are separately

determined in civil law, but also they have many common

regulations of contracts with themselves. In other words, the

traditional place of codifying the principles governs all

contractive relationships.

On the other hand, commutative contracts obey the general

conditions of other types of contracts; in this type of contract,

both parties must have serious and legal will; a costumer and a

seller must have the legal permission of ownership and use.

The legality of contracts depends on existence of an objective

subject and the rule considers collusion to reach an illegitimate

goal ineffective. (Article 190 civil law onwards) (Katousian,

vol. 1, 1387, No. 172 onwards) [24].

The article 338 of civil law defines commutative contracts as

follows: (Commutative contract are rendering the possession of

an object to a certain other party.) This large domain adds to

the commutative contract are. Because, rendering the

possession to any other party, whether money, property or

service, is considered a commutative contract and it is not

necessary that money is used in the trade. But there is a

question: What is the difference between a commutative

contract and an exchange and how can we understand whether

a certain trade between two properties is a commutative

contract or an exchange?

Distinguishing between a commutative contract and an

exchange depends on the common intention of both parties. If

they want to trade two properties with no privilege, this trade is

considered an exchange and obeys its principles. Whenever

they want that one of the properties is the object of sale and the

other its price, the contract is a commutative contract. But there

is still a problem T if it is not mentioned in the contract that it

is a commutative contract or an exchange, how can we figure

out the real intention of both parties? Does any evidence assist

prosecutors in this analysis? In the rest of the study we observe

this fact. (The same source)

The features of commutative contractsThe article 338 of

civil law defines commutative contracts as follows:

(Commutative contract are rendering the possession of an

object to a certain other party.) This definition which is derived

of faqihs states that:

1) Commutative contracts are possessory contracts

2) Commutative contracts are of reciprocal contracts

3) The property should be objective

"Commutative contracts are possessory" means that the transfer

of property to costumers and its price to sellers occur with

offering and acceptance. When sellers and costumers agree on

trading two properties and their conditions, properties and their

prices trade with each other automatically and there is no need

for commitment and execution.

That commutative contracts are possessory is accepted in

Islamic rules and came as self-evident in the civil law. This

issue is novel in European laws and some countries have not

accepted it yet. (Katusian, Vol.1, 1387:15) [24].

The definition in article 338 of civil law clearly tells us that

commutative contracts are reciprocal; It means that the

property that is sold itself is traded with the other one (which

nowadays is usually money).

This description distinguishes commutative contracts from

other types. Because in these types of contracts, either some

property is rendered to another one with nothing in exchange,

or if the receptor has been given a commitment. Between that

and the main subject, there will be no causal relationship.

(Katusian, 1377:25-29) [25].

Another description that we observe is that the object of sale

must be objective. Objectivity means a property having

materialistic and palpable existence and that is independently

traded not as a gradual fruit of another property. Usually when

it is stated that the substance of some property was transferred,

it means its substance and its interest. However sometimes it is

possible that the financial interest is transferred to another by

contracts. In that case the substance is called unprofitable.

Therefore, in spite of what some professors have written, not

being sensible is not a situation that can distinguish substance

from interests because not only sometimes interests are

tangible, but also some of the types of substance cannot be

found in outer world. Just like that a kharvar of wheat

(generally) can only be imagined and based on it parties trade.

(Katusian, 1377: 25-29) [25].

The differences between state and international

commutative contract In fact, the difference between the state and international





of countries regarding these two kinds of contracts. (Akhlaghi

and Emami 1385) [26] (Stoufflet, 1957, 2) [26].

A: technical differences

Technically, the physical distance between seller and

costumers is still the main problem, though communicative

instruments have greatly advanced.

Most of the commercial trades are between countries that have

large geographical distance between them. The reason is that

the neighboring countries have considerably similar

economical resources and that countries have to refer to far

areas to get products that they do not have and cannot find in


61

their neighboring countries. This long distance has certain

results.

If we ignore the distance between sellers and costumers, the

international commutative contracts and state ones are different

in another aspect. In the first type of commutative contracts it

is almost obligatory to uses international or foreign currency

(Dollar, Euro, Franc, etc.) as the trade price. In the state

commutative contract there is no need to use any currency

other than the one of the country of sellers and costumers.

B- Difference regarding legal and economical policies of

countries

The most important difference between state commutative

contracts and international ones must be sought in legal and

economical considerations. In fact, almost in all ages, the

international transactions were not in accordance with the

governing of countries. Nevertheless, for centuries various

governments, did not block the freedom of international

transactions seriously and were just satisfied with the custom

rules for transactions. Their goals were both getting some

income for themselves and also support their citizens'

activities.

Nowadays, regarding the epidemic economical crisis, most

countries have to interfere more in the issues regarding the

international transactions lest the liberty in transactions should

cause severe imbalance in their payments to foreign countries

or make their government lose the control of state market.

The result of this policy is establishing a control system of

transaction which is somehow severe in most countries. This

system both limits the transactions of goods and transferring

capitals (Hamel, 1955, 115) [20].

This principles and regulations shaping the international

transactional Jus commune either have supernational or state

aspects, although they are about international transactions; the

first group of these principles are observed under the title of

supernational legal resources and the second group under the

name of state resources of international commutative contracts.

The general principles of law

In some of the countries which produce oil, the only legal

system is the Islamic one. The western countries argue that this

legal system is limited to a certain Muslim area and are to solve

the problems among Muslims. Also, they believe that in the oil

rich Muslim countries, specific regulations are not anticipated

to exploit and perform oil transaction between them and

foreign countries.

As a result of this thought, in most oil contracts between oil

rich countries and foreign companies, in addition to mentioning

the rights of the oil rich countries, as governing law on

contracts, the necessity of executing the general law principles

are pointed out as complementary principles so that the oil rich

country is satisfied that in the case of disagreement, its state

law principles govern contracts, and also the foreign company

is relieved that if some problem arise in its relationship with

the other party, the recognized law principles in most legal

systems of the world guarantee its rights. (Stern, 1980, 3)

(Lalive, 1977, 319-369)

Observing the delay damage of rendering regarding the

property and price in Iran law

In mere commutative contracts, rendering is the condition of

validity of contracts. And also cause the nullification of lien

and cancelling right of delay in payment. However the most

important resulting effect on rendering is the interchangeable

liability. In the following, the effect on rendering on the mere

commutative contracts and afterwards its main effect which is

interchangeable liability are observed:

A: The effect of rendering on nullification of lien the optional

rendering of properties, results in nullifying the lien and its

reason is the practical nullification of lien by sellers. The

article 378 civil law, regarding this issue states that: (If sellers

optionally render his property before getting the price, he

cannot restitute it unless by cancelling rights.)

B: The effect of rendering on nullification of delay in price

payment

According to the article 402 of civil law: (Whenever property

substance is external or like that, and there is no determined

deadline for paying the price or rendering properties between

trade parties, if three days passes of the date of commutative

contracts and neither the seller renders the property to the

costumer nor the costumer does not pay the whole price to the

seller, the seller can cancel the transaction.) So, whenever

during three days since the commutative contracts date, a seller

renders the whole property to costumers (or costumers pay the

price to sellers), sellers do not have cancellation right anymore,

even if by some methods property returns to the seller and

payment is returned to costumers (Article 404 civil law). The

rendering of property during three days after commutative

contracts date by sellers means practical signing the

commutative contracts and so the cancelling right is nullified,

unless it could be proved, otherwise. (Sani the martyr

1410:336) [27].

Transferring the interchangeable liability, the most salient

effect of rendering

By rendering, the liability is transferred from seller to

costumers. Before observing this transfer, we must see what is

meant by interchangeable liability.

The interchangeable liability means that each contract parties

while signing the contract is obliged to give the counterpart of

what they receive from the other party to the other party. Just

like sellers who, when they receive payments, give properties

to costumers and costumers pay the price of the property they

receive. Now that we considered transfer of liability from the

seller on the condition of rendering properties, we must state

that there is another rule branched out from it which is that if a

property is destroyed before rendering, a seller must guarantee

its loss.

Although by commutative contracts per se, the ownership of

property and payment are transferred (paragraph 1 article 364

civil law), whenever properties are destroyed by an external

event, before rendering, the property of seller is destroyed and

its price as mentioned before is the one transferring from

sellers to costumers via rendering the interchangeable liability

and before rendering it the contract is not complete. Its reason

is that form analytic point of view commutative contracts is

possession of counterparts and commitment to rendering them.

Therefore, until rendering does not occur, the contract is not

complete (Paragraph 3, 4 of article 362 civil law).

The article 387 states about this issue that: (If a property is

destroyed before rendering and the seller has no fault in it, the


62

commutative contract is cancelled and payment must be

returned to the costumer.)

The important point here is that sometimes the interchangeable

liability continues after rendering the property. That is when

cancelling right is specified to the costumer or is shared

between him and another foreign person. Ti means that if at the

time of cancelling right specified to the costumer. The property

is destroyed or damaged; the seller is responsible for it. That is

what the article 453 state in this issue: (Regarding the

cancelling rights of assembly, animals and conditions, if a

property is damaged or destroyed after rendering or at the time

of seller's cancelling right or the one of contract parties,

costumers are responsible and if the cancelling right is

specified to costumers, seller is responsible for destruction or

damage) (Ibid, 336-340)

The recoverable damages of commutative contracts

A: the expenses of forming commutative contracts:

A costumer usually pays various expenses to buy their desired

property which have no limitation and can occur in numerous

cases. For example, these expenses could be pointed out: the

expense of costumer's coming to meetings until the contract is

made and property is transferred, the intermediary salary and

expense of legal counseling to reassure costumers, the

expenses of engrossing an official document. The expense of

making the contract payment and keeping it, the expenses of

evaluating properties.

Such damages and lodes must be compensated by seller and

there is no ambiguity in it since sellers caused them for

costumers.

B: Consideration of property interests

According to the article 261 of civil law (If an unauthorized

property is given to costumers, whenever the costumer does not

get permission from the owner, costumers are responsible for

property substance and its interest during the time that it

belonged to him, although they have not used its interests.)

According to the aforementioned principle, refusing the

unauthorized transaction, the owner can take the interests of

state accountants and non-state accountants from costumers

and from this viewpoint, the costumer's liability, though

ignorant to another person's merit, is the same as the one of the

usurper. The reason is that in fiqh, the receptor of an illegal

contract is considered a usurper.

Regarding this issue, faqihs do not agree on a verdict: After

paying the counterpart of the mentioned interest to the owner

of the property, can buyers refer to sellers and demand it back?

Some of faqihs, e.g. the author of Meftah Al Kerameh, argue

that costumers can refer to the unauthorized seller only for

taking back the interests of non-state accountants and not in the

case of state accountants. This is because in the second case,

they have used the property before and cannot demand it back

from the seller, too. (Allameh Helli, 1413:348) [28] But contrary

to them many faqihs consider the returning of costumers to

demand back the counterpart of state and non state accountants

without problem and do not limit the costumer right to

acquisition of the recent mentioned issue. (Najafi, 1367, vol

22:300) [29].

Demanding the loss of delay in payment

As it is mentioned in legal resources, the concept of loss of

delay in payment is not like usury and compensation of

decrease in money value. Supposing that the property belongs

to another, the unauthorized seller had guarantee liability since

the beginning of having the right to use the payments, because

of the nullification of commutative contracts and they were

obliged to return the payment to costumers. The willful

rendering of payment by costumers to sellers does not mean

satisfaction or consent since costumers imagined that the

commutative contract was valid and the commutative contract

being nullified, the consent is nullified too. So the unauthorized

seller must pay for the losses suffered from delay in payment

as an obligator.

In addition to it, if costumers demand the payment knowing

that the property belongs to another, based on the article 522 of

new code of civil procedure there is no doubt in costumers

having the right to receive the loss payments of delay in

payments since the date of demanding based on this article.

If the demandant, give the petition of restitution of payment

and loss of delay in payment to a court because of the property

belonging to another, can the court sentence the defendant to

paying the price and loss of delay in payment based on the

current price?

In cases which demandants demand the payment and loss of

delay in payment because of the property belonging to another,

the court must issue a sentence based on the article 522 of code

of civil procedure interpreting the article 391 of civil law.

It was mentioned that the concept of loss of delay in payment is

not like usury and compensation of decrease in money value.

The unauthorized seller had guarantee liability since the

beginning of having the right to use the payments and they

were obliged to return the payment to costumers. The willful

rendering of payment by costumers to sellers does not mean

satisfaction or consent since costumers imagined that the

commutative contract was valid and the commutative contract

being nullified, the consent is nullified, too. So the

unauthorized seller must pay for the losses suffered from delay

in payment as an obligator.

Obviously, the loss of delay in payment, which has the nature

of loss and is because of instigation and complacency, is more

than the price that the unauthorized seller pays as refusing the

payment itself as compensation of decrease in money value.

Observing the loss of delay in payment of property and

price in 1980 convention

In the international convention of commutative contracts of

goods there is no definition of loss. But the legislator used

damage and loss in the article 74 of the convention and stated

that the recoverable losses include material ones and loss of

profit. He considered the anticipatablity the necessary

condition for demanding losses.

The definition in the convention is generally stated and from

this view it is congruous with the legal systems of countries

and Iran. This article implied the principle of full compensation

of losses. (Schlechtriem, 1998, 533) [22].

Based on this principle, obligees have the right to demand the

full compensation of disadvantages because of cancelling

contracts by committed people. Evaluating these losses are

done based on comparing the situation of obligee when the

contract is fully executed and when it is cancelled. This method

provides the expectation interest of the obligee which is

achieved by execution of the contract. The principle of

complete compensation of includes both material losses or

emergens Damnu and loss of profit or Lucrum Cessans.

(Enderlain & Maskow, 1992, 22)


63

However there is an exception in the principle of complete

compensation of losses in the convention which refers to article

5 of the convention. According to this article, convention does

not include the responsibility of the seller regarding death or

physical harms resulting from goods. Therefore, this kind of

compensation also obeys the state regulations of countries of

contract parties.

Therefore, summarily, it must be said that the article 74 of the

convention expresses the principle of compensation for loss

and its conditions. But the nature and types of commitments

that are breached and their variety and numbers are counted

and determined based on article 45 and 61 of the convention.

So this article of convention must be interpreted in relation

with articles 45 and 61 and also the principles 75 to 80.

(Enderline, 1992, 1992, 297) (Delay in delivery)

Maintaining the possession in Iran law

In Iran law one of the effects of a legal commutative contract is

transferring the possession. It means that when the

commutative contract occurs, a costumer possesses the

property and a seller possesses its price. (Paragraph 1 article

362 Civil law). of course this is the case in a commutative

contract whose property is a determined object and if a

commutative contract is aggregate or an aggregate in

something specified, transferring the ownership is only

possible after determining the property.

Contrary to most legal systems of the world, in Iran law

transferring the liability does not accompany the one of

ownership. The article 378 of Civil law states that: If a property

is wasted before rendering and its seller is not blameful in it,

the commutative contract is cancelled and the payment must be

returned to the costumer). So, principally, transferring the

liability occurs with rendering the goods. (The exception of

article 453 of civil law must also be considered here).

In Iran law, the cancelling right weakened the effect of the

condition of maintaining the possession. This is because even if

such a condition does not exist, when costumers become

insolvent and the counterpart of the property is with him. The

seller can restitute it … (Article 380 civil law).

Therefore, the effect of mentioning the condition of keeping

the possession in Iran will be like the extended condition of

maintaining the possession in England and its effect board is

even more than the one of England law, since demanding the

profit of selling for costumers does not depend on proving the

trust relationship between them.

The 1980 Vienne international commutative contract of goods

is one of the obvious examples of this movement and it can be

considered the product of theoretical and practical attempt of

wise and intellectual men of various nations to reach the

maximum agreement, unity and integrity in the international

commercial right.

Conclusion

In a commutative contract a property is traded with another and

each party tries to achieve a property which is worthies than

the other. Therefore in it, the amount and features of both

properties of trade must be clear. Also there are two

possessions in it and the shared will of both parties connect

them and create the concept of transaction.

The article 338 of the civil law defined the commutative

contract as follows: (Commutative contract are rendering the

possession of an object to a certain other party.) It is

understood by this definition that a commutative contract is a

possessory contract and one of the reciprocal types. Also, the

property must be objective.

That commutative contracts are possessory, which is accepted

in Islamic rules and came as self-evident in the civil law, is

novel in European laws and some countries have not accepted

it yet.

Some of jurists believe that there is not much difference

between state and international commutative contracts. It

seems that the only considerable difference between them is

that the second type needs a supernational elements which is

non-existent in the first type, and also this supernational

element creates only one problem in the stage of dealing with

problems and conflicts resulting from international

commutative contracts. The judge, in order to solve the

problem between sellers and costumers must refer to the

system of conflict of rules Y But as soon as a national law

governing in the contract is found, its regulations will be

enough for solving the problems.

This viewpoint is clearly different with what actually exists. In

fact, the difference between state and international





of countries.

Regarding sellers and liabilities, it must be added that in Iran

law, the liability transferred only by rendering the good to the

costumer and not to the person responsible for its

transportation. The reason is that the seller's commitment is

rendering the property to costumers.

In 1379, in Iran law, legislators of code of civil procedure of

public and revolution courts made the demand of loss of delay

generally possible on four conditions.

Faqihs generally considered the loss of delay in rendering the

money usury and illegitimate in any case; But some of them,

supposing the huge decrease of money value and guarantee of

debtor in paying the debt on time, considered demanding the

loss of delay in rendering acceptable.

At the end, I recommend that the article 522 of code of civil

procedure of public and revolution courts in civil issues be

eliminated from this law which is related to shape issues and be

inserted in the civil law that is related to substantive

regulations. Also the accepted solution recommended by the

Guardian council be specified by legislators with stating that it

is specified to its publication for non-bank and for companies

and people.

References

1. Qomi A, Jame Alshtat, Third Edition, Tehran, Rezvan,

1371, 2.

2. Shahidi, Mehdi, forming contracts and obligations, Second

Edition, Hoghoghdan publication, Tehran, 1385, 1.

3. Bojnordi Mousavi, Seyed Hassan, Alghavaed Alfeghhiye.

Third Edition, Qom, Asra, 1368, 2.

4. Madani, Dr. Seyed Jalal al-Din, civil procedure, Tehran,

Tehran University, 1387, 1.

5. Katozian, Nasser. Property and ownership, the thirty-third

edition, Tehran, Tehran University, 1391.

Katozian N. Civil rights, First Edition, Tehran, Yalda,

1370.


64

6. Katozian, Nasser, general rules of contracts, first edition,

Tehran, Beh nashr publication, 1364, 1.

7. Katozian N. Civil rights and ownership of property, Third

Edition, Tehran, Yalda, 1389.

8. Maleki Moghadam H. Expropriation and compensation in

domestic law and international law, Fourth Edition,

Tehran, Kosar Adab, 1385.

9. Faqih Nasiri, firoz, legal codes, first edition, Tehran,

Saduq, 1372.

10. Shahidi, Mehdi, rights and obligations, Tehran, Tehran

University Press, 1378, 2.

11. Shahidi, Mehdi, forming contracts and obligations,

Tehran, Hoghoghdan, 1377, 1.

12. Heydarifar MR. The role of territory in international

relations, foreign policy journal, Foreign Affairs. 1389;

24:817.

13. Hassanzadeh B. Land and property rights analysis, Tehran,

Jangal, 1389.

14. Safai, Hussein, Ghasem Zadeh, Seyyed Morteza.

Individuals and obsoletes, Third Edition, Tehran, Samt,

1372.

15. Bojnordi Mousavi, Seyed Hassan, Alghavaed Alfeqhie.

Fourth Edition, 1368, 2.

16. Kritzer, Albert H. Guid to Practical Applications of the

United Nations Convention on Contracts for the

International Sale of Goods, Boston, kluwer law and

Taxation publishers, 1998.

17. Schlechriem, Peter. Commentary on the UN. Convention

on the International Sale of Goods (CISG), Translated by

Geoffrey Thomas, 2ed, Oxford University Press, 1998.

18. Atiyah PS. The Sale of Good, 10th edn, Longman, Pearson

Education, London, 2001.

19. Audit, Bernard. la vente Internationale de Marchandies,

Editions Juridiques, Associees (EJA), LGDS, Paris, 1999.

20. GARY, HAMEL. Core competencies and strategic intent

FASTEST-RISING STAR OF the international guru

circuit since 1994.

21. Prof. Dr. Karl-Heinz Böckstiegel (Bergisch-Gladbach,

Germany) - ICCA President of Iran-United States Claims

Tribunal, The Hague, 1984.

22. Schlechtriem. Leser in Commentary on the UN

Convention on the International Sale of Goods, Peter

Schlechtriem ed. (Oxford 1998) 533 [citations omitted].

Paragraphs, 1998, 533 (2).

23. Vienna. Convention on the International Sale of Goods,

adopted in 1980.

24. Katouzian N. Civil rights and ownership of property,

Yalda Publication, 1387.

25. Katouzian N. Civil law in the current legal order,

Dadgostar Publication, Fall 77.

26. Stoufflet B. Ethical principles of international commercial

contracts, translated by Farhad Imami & Akhlaghi Legal

Studies and Research Institute of Knowledge (1385), 1957.

27. Sani martyr, Alsharh Almaoh Aldameshghi, Vol.1. Qom,

Davari publication, 1410.

28. Allameh Helli. Tazkarte Alfoghaha, Vol. 1, Unpublished

book, 1413:348.

29. Najafi, Mohammad Hassan: Jvahralklam, vol. 37, Tehran,

Daralkotob Aleslamiye, 1367.


65


ISSN: 2455-2194, RJIF 5.12



Concept of juvenility and juvenile justice

Dr. Bhagyashree Deshpande

Prof. Vice-Principal, Bharati Vidyapeeth University, New Law College, Pune, Maharashtra, India

Abstract

The concept of Juvenility which was based on the age of the child being below 16, was raised retrospectively to below 18 by the

Amendment Act, 2006. This research paper covers the aim, objectives and benefits of the provisions of Juvenile Justice (Care and

Protection of Children) Act, 2000 as amended by the Act of 2006 and discusses recent case of the Supreme Court in Abdul Razzaq

Vs. State of UP.

Keywords: juvenility and juvenile justice, care and protection of children

Introduction

1. Juvenile Justice [1] relates to a child below 18 years being

given the benefit of the provisions of Juvenile Justice (Care

and Protection of Children) Act, 2000 as amended by the Act

of 2006. The concept of Juvenility which was based on the

age of the child being below 16, was raised retrospectively to

below 18 by the Amendment Act, 2006. The scope of the

benefit conferred under the Act of 2006 came up for a

thorough discussion before the Supreme Court in a recent

case [2] and the principle of law was laid down in very clear

terms thus:-

“The benefit is available to a person undergoing sentence, if

he was below 18 years on the date of occurrence. Such relief

can be claimed even, if a matter has been finally decided” [3].

2. Considering the scope of 7A of JJ Act and Rule 12 of

Juvenile Justice (Care and Protection of Child) Rules 2007,

the Supreme Court in Hari Ram Vs. State of Rajasthan [4]

observed ‘that the claim of Juvenility may be raised before

any court which shall be recognized at any stage, even after

the final disposal of the case and such claim shall be

determined in terms of provisions contained in the Act and

the rules made thereunder, which includes the definition of

the Juvenile in Sec 2(K) and 2(1) of the Act, even, if the

Juvenile has ceased to be so on or before the commencement

of the Juvenile Justice Act”.

In other words, the crucial date for considering the Juvenility

is the date on which the act was committed by the delinquent

and not in any relation to any fact such as commencement of

the Act, the date on which the charge-sheet has been filed or

the date on which the final decision of the court has been

rendered.

3. Sec 20 of the JJ Act extends the application of the Act to

any pending case in any court, the determination of Juvenility

of such a Juvenile in terms of Sec 2(1) of the Act, even if

Juvenile ceases to be so, ‘on or before the date of the

commencement of the Act by specifically providing that the

provisions of the Act would apply as if the said provisions

had been in force for all purposes and at all material times,

when the alleged offence was committed. In other words, if

the person was below 18 years as on the date of the

commission of the alleged act, the benefit conferred by JJ Act

would be available.

4. Juvenile Justice (Care and Protection of Children) Rules

2007 makes it quite clear that in the case of the Juvenile in

‘conflict with law’, the State Government or Juvenile Board

could either ‘suo mottu’ or an application made for the

purpose, review the case of Juvenile, determine the Juvenility

and pass appropriate order under Sec 64 of the Act for the

immediate release of Juvenile, whose period of detention has

exceeded the maximum period under Sec 15 of the Act i.e., 3

years. The scheme of JJ Act “is to give children, who have for

some reason or the other gone astray, to realize their mistakes,

rehabilitate themselves and rebuild their lives and become

lawful citizens of society, instead of degenerating into

hardened criminals [5]. The Supreme Court reiterated that

‘Juvenility of a person in conflict with law has to be reckoned

from the date of incident and not from the date on which

cognizance was taken by the magistrate [6].

5. A claim of ‘Juvenility’ can be raised at any stage such as: [1].

i) Even after the final disposal of the case;

ii) It may be raised before the appellate court for the first

time;

iii) Can be raised before the appellate court even though not

raised at the stage of trial court; and

iv) Even after the conviction order has been given in the

case.

The delay is raising the claim of Juvenility cannot be ground

for rejection of the claim.

With regard to the claim of ‘Juvenility’ after conviction, the

claimant must produce some material which may prima-facie

satisfy the court that an inquiry into the claim is necessary.

The initial burden has to be discharged by the person who

claims the ‘Juvenility’ [8].

6. With regard to the material to be produced to satisfy the

court on the claim of ‘Juvenility’, the Supreme Court

observed thus [9].

i) With regard to the material to be produced, it cannot be

catalogued;


66

ii) What weight should be given cannot be laid down but

the documents may be sufficient to raise the

presumption of ‘Juvenility’ and shall be sufficient for

‘prima-facie’ evidence to satisfy the court about the age

of delinquent necessitating an enquiry;

iii) Statement recorded under Sec 313 of the Criminal

Procedure Code is too tentative and by itself not

sufficient to justify or reject the claim of ‘Juvenility’;

iv) The credibility or acceptability of the document like

school leaving certificate or the voter’s list obtained

after conviction would depend on the facts and

circumstance of the case and no hard and fast rule can be

prescribed. However, the documents produced must be

found prima-facie crediable; [1].

v) However, in Jitendra’s case, [11] the school leaving

certificate, marks sheet and medical report were treated

as sufficient to direct an enquiry and for verification of

the age. The court felt that the documents prima-facie

inspire confidence of the court for directing an inquiry

and for the determination of age; [12].

vi) An affidavit of the claimant or any of the parents or a

sibling or a relative in support of the claim of

‘Juvenility’ raised for the first time in appeal or revision

or during the pendency of the matter or after disposal of

the case shall not be sufficient for justifying an enquiry

to determine the age of such person, unless the

circumstances of the case are so glaring that satisfy the

judicial conscience of the court to order an inquiry into

the determination of the age of delinquent. The court,

where the plea of ‘Juvenility’ is raised for the first time

should always be guided by the objectives of JJ Act and

be alive to the position that the beneficent and salutary

provisions contained in JJ Act are not defeated by the

hyper-technical approach and persons who are entitled

to benefit get such benefits; [13].

vii) The court should not unnecessarily influenced by any

general impression that in schools, the parents /

guardians understate the age of their wards by one or

two years for future benefit or that the age determination

by the medical examination is not very precise. The

matter should be considered prima-facie on the

touchstone of preponderance of probability; [14].

viii) Claim of ‘Juvenility’ lacking in credibility or frivolous

claim of ‘Juvenility or patently absurd or inherently

improbable claim of ‘Juvenility’ must be rejected by the

court at the threshold whenever raised; [15].

7. The raising of the age of Juvenile to below 18 from below

16 applies retrospectively so as to give the benefit to

Juveniles who are below 18 years at the time of the

commission of the Act [16].

8. Where the plea of ‘Juvenility’ has not been raised at the

initial stage of trial and has been taken only at the appellate

stage, the Supreme Court has consistently maintained the

conviction but has set aside the sentence [17].

9. The Supreme Court, [18] while dealing with cases of

Juveniles, has laid down the following procedure:-

i) In all such cases, where the accused was above 16 but

below 18 years of age, on the date of occurrence, the

proceedings pending in the court concerned, will

continue and be taken to their logical and except that the

court upon finding the Juvenile guilty will not pass an

order of sentence against him;

ii) Instead, he shall be referred to the JJ Board for

appropriate orders under JJ Act;

iii) The trial court as well as the High Court are legally

required to record a finding as to the guilt or otherwise

of the delinquent; and

iv) All that the courts can do to record an order of

conviction, cannot pass any sentence but refer the case

to JJ Board.

10. Sec 7-A(2) prescribes the procedure to be followed under

JJ Act [19]. However, there is no provision suggesting for the

court before whom the claim of ‘Juvenility is made, to set

aside the conviction on the ground that on the date of

commission of the offence, he was a Juvenile and hence not

triable by an ordinary court of law. The court dealing with the

case can only make a reference to JJ Board for appropriate

orders, setting aside the sentence passed.

11. In conclusion, the following suggestions are made:-

i) The courts, while dealing with the case of Juvenile must

have the necessary power not only to set-aside the

sentence but also conviction order as well and leave the

matter to JJ Board to deal with, in accordance with law;

ii) Detaining a person in jail pending the detention of the

age of ‘Juvenility’ the courts must have the power to

suspend the sentence. If it is found to be a case of

‘Juvenile’ all proceedings shall be quashed and direction

given to JJ Board for appropriate order to deal with the

case;

iii) The future of the Juvenile shall be protected from not

keeping him in jail pending the determination of

‘Juvenility’ and

iv) A clear cut rule may be laid down exhaustively

providing for the material to be produced for satisfying

the court on the plea of ‘Juvenility’ so that the

proceedings are expedited.

Witnesses may be produced, as a last resort to give

evidence about the age or the exact date of birth like the

prohit who attended the 10th day naming ceremony of

the child or 1st Birthday which was attended by relatives

and parties and so on.

The rule should provide sufficient guidelines for the

determination of the age, so that a person entitled to JJ

Act is not deprived of the benefit, just as a man who is

not able to produce his BA Certificate being treated as

an Inter qualified when he has actually passed BA

examination and obtained the degree. Secondary

evidence must be allowed to be produced, whenever

necessary, in the interests of justice;

v) JJ Board must consist of experts in the area of child

welfare and Juvenile delinquency and related aspects of

child psychology to deal with the case of Juveniles.

It must be remembered that children are the future assets

of the nation and the development of the nation lies in

the future generation for its progress.

References

1. Juvenile Justice Refers to Juvenile Justice (Care and


67

Protection of Children) Act, 2000 as amended by Act of

2006.

2. Abdul Razzaq Vs. State of UP. 2015 Cr LJ P.411 (SC).

3. Ibid Para 10.

4. AIR 2011 SC (Cri) 2053

5. Note 2 Para 56.

6. Pratap Singh’s case AIR 2005 SC P.2731.

7. Abizer Hassain alias Gulam Hossain Vs. State of WP

AIR 3012 SC P.1020.

8. Note 2 Para 39.2

9. Ibid.

10. Akbar Shaik’s case AIR 2009 SC (Supp) P.1638. See

also Pawan’s case, AIR SCW, 2009. 2171.

11. AIR 2011 SC (Supp) 588.

12. Note 2 Para 393.

13. Note 2 Para 39.5.

14. Ibid.

15. Note 2 Para 39.5.

16. This statement of law was reiterated by the Supreme

Court in Union of India Vs. EXGNR Ajeet Singh AIR

SCW. 2013, 2116.

17. Babla Vs. State of Uttarakhand 3 SCC (cri) P.1067;

Abuzar Hossain Vs. State of West Bengal AIR 2013 SC

P.1020 and Hari Ram Vs. State of Rajasthan AIR 2011

SC (cri) P.2053 and in other cases, 2012.

18. Jitendra Singh alia Babboo Singh Vs. State of UP AIR

SC (cri), 2015, 355.

19. Note 18.


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ISSN: 2455-2194, RJIF 5.12



Extent of judicial intervention in the arbitral regime: Contemporary scenario

Mitakshara Goyal

B.A.L.L.B University, O.P. Jindal Global Law School, Sonipat, Haryana, India

Abstract

This paper provides with a critical analysis of the 2015 amendments in the Arbitration and Conciliation Act, 1996 which aims at

the segregation of the arbitral regime from the judicial intervention. The aim of these amendments was to preserve the sanctity of

the arbitral regime as any aiding mechanism to relieve the overburdened Indian Judiciary. However, with the excessive judicial

intervention in the arbitral proceedings, the purpose was getting dissolved. The issue before addressed herein is the extent to which

these amendments have successfully managed to minimize the role of the judicial system and made arbitration an effective regime

to deliver justice. Addressing this issue, certain irregularities in the intention of the legislature while making the amendments with

respect to the spirit of the Arbitration Act have been highlighted.

Keywords: 2015 Amendments, Competence Competence, Judicial intervention in arbitration, appointment of arbitrators

1. Introduction

Prior to the 2015 amendments in the Arbitration and

conciliation act 1996, India’s journey in fastening the judicial

pendency and disposal of cases has been extremely

ineffective and subject to criticism. One of the major issues

with the arbitration regime was the copious judicial

intervention in the arbitration procedures that stood in

contradiction to the whole aim behind setting up of this

regime which was to unburdened the excessively burdened

judicial system of India. This paradox and certain anomalies

were recognized by the legislation that led to certain

amendments in 2015 which led to a restriction on the active

participation of the judiciary in the matters dealt by the

arbitration. The Law Commision of India initiated the project

to revolutionize the arbitration regime and amend the Act in

2010 [1]. The final report was submitted in 2014 and the

Parliament and the President sanctioned the same in August

2015 [2].Post the 2015 amendment, the arbitration tribunal was

given enhanced powers resulting from the reduced role of the

judicial system in the purview of arbitration regime.

However, how effective these amendments are in practicality

is yet to be assessed.

1.1 Scope of this paper

This paper is a comparative analysis of the effect of the 2015

amendments on the extent of judicial intervention with

respect to Arbitration and Conciliation Act (Part I of the Act).

It analysis to what extent the amendments have been effective

in liberating the arbitration tribunals from the restricting

judicial regime [3]. The intention of the legislation to minimize

the judicial influence in the arbitration regime is evident from

the insertion of Section 5 that urges to reduce any sort of

judicial intervention unless specified in the statutes itself and

promote speedy disposal of the matters referred for

arbitration. Section 5 of the Act has been derived from Article

5 of the Model Law [4] that provided with a limited view of

the appropriateness of the Court’s intervention in the

arbitration matters. The idea behind the insertion of this

section is not to blatantly negate all sorts of intervention by

the judiciary, however, it is to restrict court intervention and

to exclude all other remedies. This exclusions is neither

restricted to certain defined stages of arbitration nor to the

pendency of the proceeding solely. The excluded remedies

involve the interim measures provided under Section 9, at the

stage of reference to arbitration under Section 8 in pending

actions or at the stage of appointment of arbitrators under

Section 11. The amendments being further discussed are on

the lines of Section 5 which aims to get rid of judicial

intervention to a large extent to avoid any stalling of such

matters.

1.2 Diminishing Judicial Intervention: Analysis of the

2015 Amendments

Prior to the amendment Section 8 provided the provision for

the parties in dispute to refer the matter to the court

irrespective of whether there was an existence of an

arbitration agreement which is the prerequisite for seeking

reference under Section 8 [5]. It laid a discretionary power on

the courts to decide whether to refer the matter further to the

arbitration tribunal if there is an arbitration agreement on the

same subject matter as that of the dispute [6]. However, to curb

these enhanced discretion in the hands of the courts, the 2015

amendment interchanged the word ‘may’ to ‘shall’. This

made the section preemptory imposing an obligation on the

courts to refer the matter to the arbitration tribunal under an

application made by a party to the arbitration agreement or

any person claiming through or under him, not later than the

date of submitting his first statement on the substance of the

dispute, in case there is a prima facie existence of a valid

agreement [7]. This in turn gives the arbitration tribunal to

adjudge the validity of the arbitration agreement and check

whether it has the competent jurisdiction to further adjudicate

the matter under Section 16 of the Act. It throws light to the

concept of Competence Competence envisaged under Section

16 of the act which empowers the arbitration tribunal to solely

judge its own competence in a matter along with the validity

of an arbitration agreement. The insertion of the term ‘shall’

in the first subsection of Section 8 makes it mandatory on the


69

courts to refer the parties to the tribunals in case the above

mentioned conditions are fulfilled [8].

The second subsection, provides the party applying for

reference to the tribunal to also file an application asking the

court to call upon the other party to produce the original

arbitration agreement in case they themselves fail to have the

original or a duly certified copy. The effect of these

amendments made under Section 8 led to significant changes

in the functioning of the proceedings of the arbitration. Under

first subsection, non-signatories to the agreement could also

be referred to the arbitrational tribunal seated in India with the

insertion of the term ‘parties claiming through them’ [9]. It

became mandatory for the courts to refer the parties to the

arbitration tribunal in case of a prima facie valid arbitration

agreement that yet again condensed the discretionary power

of the courts.

Furthermore, the purpose of diminishing the role of the

judiciary is evident from the amendment of Section 11 of the

Act. The amendment in Section 11 brought some insertions

and structural changes to the section that drastically changed

the procedure and nature of appointment of arbitrators. One of

the main points of contention that arose under section 11 over

the years is whether the function of the Chief Justice under

the said section is an administrative function or a judicial

function. In the case of S.B.P & Co. vs. Patel Engineering

Ltd. [10], it was contended that since Section 11 vests the

power of appointment of arbitrator on the CJI, and not the

court, it is an administrative function which will lack any

precedential value. However, the Court rejected this argument

and ultimately held that it was a judicial function. Further, the

recent case of State of West Bengal vs. Associated

Contractors [11] recognized the issue of CJI not being the

court per se and the requirement to replace CJI to the required

competent courts i.e. High Court and Supreme Court. This,

was taken up in the ordinance and in 2015, the word CJI was

replaced to the either ‘Supreme Court or High Court judges

and was held to be an administrative function of appointment

of arbitrators.

Further, there was insertion of two subsections namely 6A

and 6B in Section 11 of the Act. Sub-section 6A stated that

for the appointment of arbitrators the arbitration agreement of

the dispute has to be examined. Also, this appointment of the

arbitrator to adjudicate the disputes matter is in no form

delegation of any judicial power. This amendment were made

to undo the wide powers conferred in the hands of the CJI in

the Patel Engineering decision. It recognized the Chief Justice

of India’s power to decide his competence and jurisdiction to

adjudicate a dispute, the validity of the arbitration agreement

and the existence of the condition for the exercise of the

power and qualifications of the arbitrator or arbitrators. More

so, it was held that the Chief Justice can delegate his power

under section 11 only to another judge of that court [12].

However, this was revoked by the Ordinance that allowed the

Supreme Court or High court to assign any other institution or

competent person to make the appointment of arbitrator,

which cannot be challenged on the grounds of delegation of

judicial duties.

The newly amended subsection 7 states that the decisions

made under subsections (4), (5) and (6) are non-appealable

and final including no latent patent appeal to lie against it.

Further, post amendment, under subsection 14, for the

purpose of determination of the fee of arbitrators, there will

be a cap on the fee that an arbitrator may charge in an ad-hoc

domestic arbitration, which will be based on the dispute

amount [13]. This amendment somewhere seeks to recognize

the supremacy and finality of the judicial decisions which

creates a sense of irregularity in the scheme of arbitration as

envisaged under Section 5 of the Act.

Another recent amendment that recognized the independence

of the arbitration tribunals was in the case of granting interim

measures under Section 17. Prior to the 2015 amendment, any

interim measures granted by the tribunal under Section 17

were not enforceable, which led to the parties seeking the

same under Section 9 from the courts. This led to the dilution

of the motive of unburdening of the judiciary as the Courts

had to intercede to deal with applications of grant of interim

measures which were enforceable under Section 9.

However, post the amendment, the role of the judiciary has

been minimized due to several insertions in Section 9 which

have to be read in light of Section 17 of the Act. Sub-section

(2) has recently been inserted in Section 9 that gives the

power to the court to grant interim measures only before the

tribunal has been constituted for the matter and in case it does

pass an order for interim measures, the arbitral proceedings

shall be commenced within 90 days from the date of such

order, or within such further time as the Court may determine.

Moreover, subsection 3 was added that restricted the power of

the court to not deal with any such application once the

arbitral tribunal has been constituted and shall refer the same

to the tribunal. It is then the discretion of the arbitration

tribunal to grant interim measures under Section 17 of the

Act. This remedy will only be entertained by the court in case

the decision by the tribunal is challenged on the grounds of

non-efficacy. Post amendment the interim measures granted

by the tribunal are enforceable and the tribunals have the

authority to make all types of orders for interim measures as

the Court ever had. This amendment has recognized the

supremacy of the tribunal and at the same time conferred with

the intent of the legislation under Section 5 to minimize

judicial interference for the effectiveness of arbitration as an

alternate dispute resolution mechanism.

1.3 Blurring of the objective of the Ordinance: Insertion

of 29 A

The insertion of this entirely new section was opposed by the

Chairman of the Law commission of India, however it was

inserted under the ordinance passed in 2015. This amendment

raises certain question regarding its effectiveness to reduce

judicial intervention.

This insertion imposes a time limit of twelve months on the

arbitral proceeding from the arbitral tribunal enters upon the

reference. This time limit on the consent of the parties can be

extended by 6 months. However if the award is not made

within the time limit defined, the mandate of the arbitrator

terminates unless the Court on the application of either parties

deems fit to extend the time period. This gives the court

enhanced discretion to adjudge whether the delay in making

the award or proceedings were due to a sufficient cause or

not. Excessive powers have been conferred on the Courts to

reduce the fees of the arbitrator(s) not exceeding 5 per cent

for each month of such delay. Moreover, the court can

command substitution of one or all arbitrators while

extending the period.


70

The scheme of the act to diminish active role of the judiciary

as evinced by insertion of Section 5 seems to blur. Section 29

A foists court intervention on the parties who wish to seek a

further time extension above 18 months of arbitral

proceedings. It is a highly impractical time bar set by the

legislature since maximum arbitrations in India take a

minimum time of 2 years for deciding the award. This makes

judicial intervention more likely and essential thus creating a

dependency of the arbitral regime on the courts. Further, the

insertions of the term ‘may’ and ‘sufficient cause’ in context

of courts granting extensions, creates a wide scope of

discretion and arbitrariness by the Courts.

Moreover, such judicial intervention will further adjournment

of the arbitral proceedings due to the enormous amount of

pending cases in their docket. The power conferred on the

courts to impose a penalty on the arbitrators’ fee would

gravely affect the relationship between the courts and the

arbitral tribunal. This would in turn effect the efficiency of

the arbitral tribunals to provide aid to the burdened Indian

judiciary.

2. Conclusion

2.1 Potential Applicability of the Amendments

Arbitration is a trending dispute resolution mechanism in

India which has undergone sever amendment in its

functioning and effectiveness. The potential applicability of

the above mentioned amendments is still a contention that is

being raised. However, there seems to be irregularity in the

intention of the legislature while making such amendments

with respect to the spirit of the Act. While on one hand, there

have been amendments in Section 8, Section 9, Section 11

and Section 17 that reduce the scope of judicial intervention

to a large extent and uphold the supremacy of the arbitration

tribunals in the arbitration regime, but on the other, insertion

of Section 29 A nullifies the effect of the same. The inclusion

of arbitration in the justice system was with the intention to

reduce the pendency of cases with the courts and enhance the

disposal of cases outside courts. However, Section 29 A

enforces overambitious time standards which are certainly

impossible for the tribunals to adhere to. This to a certain

extent retains judicial influence on the arbitration proceedings

and a dependency of the tribunals on the courts to avoid any

harsh repercussions of the delay with the Courts have the

power to impose. Though these are academic criticisms, it is

yet to be analyzed in its potential applicability in the

arbitration regime.

3. References

1. Law commission of India, report no. 176 - the arbitration

and conciliation (Amendment) Bill, 2001. Available at,

http://lawcommissionofindia.nic.in/arb.pdf

2. Law commission of India, Report no. 246 – amendments

to the arbitration and conciliation ACT, 1996-2014, 25.

Available at

http://lawcommissionofindia.nic.in/reports/Report246.pdf

3. India: Critical Analysis of the Arbitration and

Conciliation Amendment Act, 2015.

http://www.mondaq.com/india/x/494184/Arbitration+Dis

pute+Resolution/Critical+Analysis+Of+The+Arbitration

+And+Conciliation+Amendment+Act+2015 last

accessed on 28 Oct. 2016.

4. Atul Singh, Ors V, Sunil Kumar Singh, Ors., 2SCC602,

2008.

5. Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya and

Anr. 2003, 5SCC531.

6. Anand Gajapathi Raju P, Ors vs PVG. Raju (Died), Ors

2000, 4SCC539.

7. Arbitration in India an Overview - IPBA.

https://ipba.org/media/fck/files/Arbitration%20in%20Indi

a.pdf, last accessed, 2016.

8. Chloro Controls I P. Ltd. vs. Severn Trent Water

Purification Inc. 1 SCC 641, the SC, held that under

Section 8, a non-signatory could not seek reference to

arbitration in arbitration seated in India, 2013.

9. SBP, Co. vs. Patel Engineering Ltd., 2005, 8 SCC 618.

10. State of West Bengal vs. Associated Contractors, AIR

2015 SC 260.

11. 8 SCC 618, 2005.

12. ELP Analysis - Amendments to Arbitration &

Conciliation Act 1996. pdf.,

13. http://www.moneycontrol.com/news_html_files/news_att

achment/2015/ELP%20Analysis%20-

%20Amendments%20to%20Arbitration%20&%20Conci

liation%20Act%201996.pdf) last accessed on 27 Oct.

2016.


71

International Journal of Law ISSN: 2455-2194, RJIF 5.12 www.lawresearchjournal.com Volume 2; Issue 6; November 2016; Page No. 71-73

Criminal responsibility for the use of torture some of countries CIS Karimov Khurshid Akramovich

Independent Researcher, Tashkent State Law University, Uzbekistan

Abstract In this article comparative analyzed responsibility for the use of torture in national, foreign and international legal standards and given a proposal for the improve of the legal basis responsibility for the use of torture. Keywords: use of torture, inhuman treatment, cruelty, degrading punishment

Introduction Human rights - is the supreme value. Initially among the ideas about human rights any views on personal rights. Namely, such rights as the right to life, liberty and security of person, to protection against encroachments on honor and dignity. It should be noted that "the killing of a slave is not regarded as a crime in ancient Rome, for the servant, according to the ancient Roman laws was the thing, so the deprivation of his life was considered civil law tort" [1]. This, in turn, is a proof that at that time no idea of equality of individual rights. Development of ideas of human rights served as enshrined in international legal norms inviolability of individual rights and freedoms. In particular, the Universal Declaration of Human Rights Article 1 states that All human beings are born free and equal in dignity and rights, in Article 3 - Everyone has the right to life, liberty and security of person, Article 5 - No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Naturally, when it comes to human rights, the importance of acquiring the right to personal integrity and his defense. Namely, everyone has the right to protection from various attacks. One of the types of attacks on the personal integrity of torture are, by their very nature are a danger to society. That is why in the international legal standards, and national law torture is prohibited and recognized as crimes. In particular, adopted in 1950 by the European Convention on Human Rights, 19 December 1966 International Covenant on Civil and Political Rights, in 1975, the Declaration for the Protection of All Persons from Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, May 26, 1995 CIS Convention on Human Rights and Fundamental Freedoms, 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also secured the torture ban. As a result of the development of ideas about human rights in international law are reflected in the national legislation of States. It should be noted that the Constitution of the Republic of Uzbekistan, recognizing the priority of the universally recognized norms of international law, article 26 specifies that no one shall be subjected to torture, violence or other cruel or degrading treatment. In addition, Uzbekistan has ratified a number of international legal instruments relating to this area. In particular, to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

also secured the torture ban, adopted on 10 December 1984, Uzbekistan joined Aug. 31, 1995. Article 1 of this Convention, torture defined as follows: "any act by which act by which severe pain or suffering, whether physical or mental, to obtain from him or a third person information or a confession, punishing him for an act he or a third person or the commission of which they are suspected, and or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by a public official or other person acting in an official capacity or at the instigation of or with the consent or acquiescence ". Note that, on the basis of the social danger of torture in article 235 of the Criminal Code against torture and other cruel, inhuman or degrading treatment or punishment defined as a crime. According to the Art. 235 of the Criminal Code of the Republic of Uzbekistan, torture and other cruel, inhuman or degrading treatment or punishment is considered as a criminal offense. According to this article “torture and other cruel, inhuman or degrading treatment or punishment, that is illegal mental or physical pressure on a suspect, accused, witness, victim or other participant of the criminal process or convicted person and their close relatives by means of threats, blows, beatings, torturing, inflicting suffering or other unlawful acts committed by the inquirer, investigator, prosecutor or another officer of the law enforcement agency in order to get from them any information or confessions of a crime, their unwarranted punishment for committed crime, or compelling them to commit any action”. "In the case where the torture occurred with application of violence dangerous to life or health, or with threat of such violence; for any motive, based on ethnic, racial, religious or social discrimination; a group of persons; repeatedly; against a minor or a woman known by the perpetrator to be pregnant, which is aggravated liability arises under Part 2 of Article 235. However, if the perpetrator acts resulted in serious bodily harm or other grave consequences - by part 3 of article 235 of the Criminal Code of the Republic Uzbekistan. Whoever is guilty of an offense under Part 3 of Article 235 of the Criminal Code, the penalty of imprisonment from five to eight years with deprivation of certain rights? It is necessary to note that in light of the reforms in the legal system of the country carried out a massive work on strengthening the rule of law and human rights. The great


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attention is paid to the changes in legal thinking and legal culture of the members of law enforcement agencies, so that each of them respected the rule of law and human rights guaranteed by international law, the Constitution of our republic and national legislation1. As a result of the reforms on the further improvement of legal mechanisms of ensuring human rights and freedom there have been made number changes and amendments to the various legislative acts. In particular, in connection with the adoption of the Law “On introducing changes and amendments to some legislative acts in connection with the improvement of institution of the Bar” from December 31, 2008 were made some changes and additions to the Criminal Code, Code of Criminal Procedure, Code of Administrative Responsibility and the Law “On Advocacy”. According to Art. 49 of the Code of Criminal Procedure of Uzbekistan “the defender is allowed to participate in any stage of criminal proceeding, and under the detention of a person – since the actual limitation of his freedom of movement”. Moreover, Art.18 of the Code of Criminal Execution of the Republic of Uzbekistan stipulates that when dealing with complaints, as well as checking on their own violations of human rights, freedoms and legal interests of citizens Commissioner of the Oliy Majlis for Human Rights (Ombudsman) has the right to visit institutions on the execution of punishments. In accordance with Art. 40 Criminal Executive Code Republic of Uzbekistan, on the judgments can receive and send letters without limitation of their number. Correspondence of convicted persons shall be censored, with the exception of correspondence with the Commissioner of the Oliy Majlis for Human Rights (Ombudsman). In accordance with Art. 8 Law of the Republic of Uzbekistan "On the internal affairs "employee of the internal affairs is forbidden to resort to torture, violence or other cruel or degrading treatment. Body Interior employee is obliged to stop the action, which the citizen is intentionally inflicted pain, whether physical or mental suffering. In accordance with Art. 7 Law of the Republic of Uzbekistan "About operatively-search activity" no one shall be subjected to torture, violence or other cruel or humiliating or degrading treatment. In the criminal law of foreign countries also reflected the norms regarding the responsibility for the use of torture. In particular, in accordance with Part 1 of Article 394 of the Criminal Code of the Republic of Belarus to the coercion of a suspect, accused, victim or witness to testify or an expert to give a conclusion by means of threats, blackmail or commit other illegal acts the person conducting the inquiry, preliminary investigation or carrying out Justice applied a penalty of deprivation of the right to occupy certain positions or engage in certain activities, or restriction of freedom for up to three years, or imprisonment for the same period, with disqualification to hold certain positions or engage in certain activities or without deprivation. In accordance with Part 2 of the said article is forced to testify or imprisonment with violence or bullying shall be punished by imprisonment for a term of two to seven years with deprivation of the right to occupy certain positions or engage in certain activities or without deprivation. The same actions connected with the use of torture, based on Part 3 of Article 394 shall be punished by

imprisonment for a term of three to ten years with deprivation of the right to occupy certain positions or engage in certain activities or without deprivation. Article 146 of the Criminal Code of the Republic of Kazakhstan called "Torture". Intentional infliction of physical and (or) mental suffering, an investigator, a person conducting an investigation, or any other official or other person with their instigation or with their consent or acquiescence, in order to obtain from the tortured or another person information or a confession, or to punish him for an act he or a person or in the commission of which he is suspected, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, in accordance with part 1 of article 146 shall be punished by a fine not exceeding five thousand monthly calculation indices, or correctional labor for the same amount, or restriction of freedom for up to five years, or imprisonment for the same period, with disqualification to hold certain positions or engage in certain activities for up to three years. The same acts committed by a group of persons or group of persons by prior conspiracy; repeatedly; the infliction of moderate bodily harm; against a woman known by the perpetrator to be pregnant, or minor, in accordance with part 2 of the article shall be punished by imprisonment for a term of three to seven years with deprivation of the right to occupy certain positions or engage in certain activities for up to three years. The above acts, entailed the infliction of grievous bodily harm or negligence death of the victim, in accordance with part 3 of article 146 of the Criminal Code of the Republic of Kazakhstan shall be punished by imprisonment for a term of five to twelve years with the deprivation of the right to occupy certain positions or engage in certain activities for up to three years [1]. Article 1661 of the Criminal Code of Moldova called torture, inhuman or degrading treatment. Intentional infliction of pain or physical or mental suffering amounting to inhuman or degrading treatment, public or a person who actually performs the functions of a public institution or any other person acting in an official capacity or with the consent or acquiescence of such persons, causing attraction responsible for part 1 of article 1661 of the Criminal Code of Moldova, shall be punished with imprisonment from 2 to 6 years or a fine of 800 to 1000 conventional units with the deprivation in both cases the right to occupy certain positions or engage in certain activities for a period of 3 to 5 years. The same actions committed in the presence of aggravating circumstances, such as: in respect of a minor or a pregnant woman or with known or obvious helpless condition caused by advanced age, illness, physical or mental disabilities or any other kind of factors; against two or more persons; two or more persons; with the use of weapons, special weapons or other items, designed for the purpose; official or person of political appointees; caused by negligence the infliction of serious or moderate bodily injury or other serious or moderate bodily injury; on imprudence entailed death of a person or a suicide, be punished by imprisonment for the term from 3 to 8 years, or a fine of 800 to 1000 conventional units with the deprivation in both cases the right to occupy certain positions or engage in certain activities for a term of 5 to 10 years. In Part 3 of Art. 1661 the Criminal Code of Moldova is given the following definition of torture in line with that under torture means any intentional act of inflicting any person


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severe pain or physical or mental suffering for the purpose of obtaining from him or a third person information or a confession, punishing him for an act, committed by him or a third person or the commission of which he is suspected, intimidating or coercing him or a third person, or for any other reason based on discrimination of any kind, when such pain or suffering is inflicted by a public official or a person who actually performs the functions of a public institution or any other person acting in an official capacity or with the consent or acquiescence of such persons, which is punishable by imprisonment for a term of 6 to 10 years, with disqualification to hold certain positions or to practice from 8 to 12 years in certain activities for a period of the same actions committed in the presence of aggravating circumstances, such as: in respect of a minor or a pregnant woman or with known or obvious helpless condition caused by advanced age, illness, physical or mental disabilities or any other kind of factors; against two or more persons; two or more persons; with the use of weapons, special weapons or other items, designed for the purpose; official or person of political appointees; caused by negligence the infliction of serious or moderate bodily injury or other serious or moderate bodily injury; on imprudence entailed death of a person or a suicide, be punished by imprisonment for a term of 8 to 15 years, with disqualification to hold certain positions or engage in certain activities for a period of 10 to 15 years. According to article 293 of the Criminal Code, under the coercion of suspects, accused, victim or witness to give evidence during interrogation, as well as an expert to give a conclusion by means of threats, blackmail, humiliation or other unlawful acts on the part of the prosecutor, investigator or person conducting inquiry, or at the instigation of the penalty of imprisonment for up to three years. The same actions connected with the use of torture in accordance with Part 2 of Article 193 of the Criminal Code of the Azerbaijan Republic shall be punished by imprisonment for a term of five to ten years. Article 127 of the Criminal Code of Ukraine is called "Torture". Torture, that is, intentional infliction of severe physical pain or physical or mental suffering by beatings, torture, or other acts of violence in order to force the victim or another person to commit acts that are contrary to their will, including obtaining from him or another person information or a confession or to punish him or any other person for acts committed by him or by a person or in the commission of which he or another person is suspected, as well as to intimidate or discriminate against him or other persons shall be punished by imprisonment for a term of two to five years. The same actions committed repeatedly or on preliminary arrangement by group of persons, or on the grounds of racial, ethnic or religious intolerance, shall be punished by imprisonment for a term of five to ten years. In accordance with Article 302 of the Criminal Code of the Russian Federation suspected abuse, accused, victim or witness to testify or an expert or specialist to give an opinion or testimony by use of threats, blackmail or other illegal actions on the part of the investigator or person conducting the inquiry, as well as other a person with the consent or acquiescence of the investigator or person conducting the inquiry, shall be punished by restriction of freedom for up to three years, or community service for up to three years, or imprisonment for the same term. The same act, coupled with

violence, bullying or torture, shall be punished by imprisonment for a term of two to eight years. Thus, we note that as a result of the analysis it was found that in all of these states are defined in torture as a criminal offense which carries a statutory responsibility. In conclusion, it is necessary to stress that the norms and provision of current national legislation meet the universally accepted norms and standards of international law. And the improvement of national legislation against torture and other cruel, inhuman or degrading treatment or punishment is one of the main conditions of the protection of human rights and freedoms. References 1. Criminal law of Russia. A common part. Textbook. 2 nd

ed., Corrected. and ext. (Edited by V. Revin, Doctor of Law, Professor, Honored Worker of Science of the Russian Federation). - "Yustitsinform"2010. With 47.

2. http: ///online.zakon.kz.


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ISSN: 2455-2194, RJIF 5.12



Non special inquiry agencies (Using urgent investigative actions the legal basis for the inquiry activity

and the improvement of their)

Fayziev Shokhrud Farmonovich

PhD, Associate Professor, Senior science researcher at Tashkent State University of Law, Uzbekistan

Abstract

Manuscript show the ways of improvement, critical analysis of the inquiry and suggestions to improve the procedural position of

the inquiry agencies and the institution of the inquiry.

Keywords: inquiry agencies, criminal procedure, criminal case, the inquiry, the investigator, the pre-trial stages

Introduction

The Universal Declaration of Human Rights adopted by the

UN in 1948, is regarded by the international community as

the system is developed and coordinated at the highest level

and the rules of human coexistence guidelines, as a sort of

code of a mutually acceptable, civilized behavior in different

countries, nations, corporate entities and individuals. The

universal significance of this document, in which the

expressed will of the consolidated about 200 nations of the

world, convincingly demonstrated by the practice of his

actions.

The Universal Declaration of Human Rights is one of the first

international treaties on human rights, which Uzbekistan

ratified after independence and thereby subscribes contained

therein generally accepted standards and norms of human

rights. Today, these generally accepted standards and norms

of human rights are reflected in the domestic legislation of

Uzbekistan. In particular, "the provisions of the Universal

Declaration of Human Rights are embodied in the norms of

the Constitution, national laws to ensure the protection of

political, economic, social and cultural rights and freedoms" [1].

Since independence, the formation of a democratic state of

law in Uzbekistan, first of all, it was designed to protect

individual liberty. After all, the rule of law, rule of law,

separation of powers, mutual rights and obligations of the

state and the individual - these and other signs of the state

characterize it as a law and create a more effective conditions

for the realization of individual freedom.

One area that was exposed to radical reform is the judicial

system. The reason is that without a new, independent,

democratic legal system is not possible and the full

functioning of the social, economic and spiritual life of the

country. Of particular importance this was to acquire in case

of failure of command - administrative management and

decision-making for truly democratic, legal state and civil

society with developed market economy, where the rule of

law, strengthening the protection of rights and interests of the

individual, family, society and the state, raising the legal

culture and consciousness of the population, education of

law-abiding citizens are both ends and means, the most

important condition for the creation of such a state. To

achieve this, the judicial sphere required a deep understanding

of, and fundamental reforms, reform that was undertaken.

Inmates are not a special investigating body of the Republic

of the main subjects of the criminal proceedings, provided

that:

1) military units, commanders of the main task of the chiefs

of the military institutions and educational institutions,

military institutions and educational institutions, students,

soldiers and military control of the disciplinary procedure;

2) The Ministry of Internal Affairs of the Republic of

Uzbekistan leaders of the governing bodies of the system

of execution of penal institutions in the form of arrest,

penal colonies, the colonies, the main task of the heads of

detention centers and prisons, which are these institutions

the provisions stipulated in the Criminal Procedural Code

serving the speed control;

3) Called the state fire control agencies shows that the policy

of the government to control the fire;

4) Captains of vessels that the ship's precise and accurate

control of the supply of management guidance.

Border guard authorities not to dwell on the reason for this is

that, as a result of the reforms of the last years of the

Republic, the State Committee for the protection of the

borders of an independent state body in December 2003, and

lost its importance as part of the National Security Service.

"On introduction of amendments and additions to some

legislative acts of the Republic of Uzbekistan" On April 30,

2004, the Republic of Uzbekistan No. 621 II state border

protection functions of the committee of inquiry on

amendments and supplements to the law. The amendments

adopted in December 2003 on the basis of the presidential

decree and this decree to protect the borders of the State

committee for national security associated with the

introduction of the system. Thus, on August 20, 1999, "the

State border of the Republic of Uzbekistan" On December 15,

2000 and the law of the "fight against terrorism" On

amendments and additions to the law, the fight against

terrorism and the protection of the borders of the state

investigation and rapid implementation competence to carry

out activities gauges are now only carried out by the National

security service.


75

Republic of Uzbekistan "On the state border" in accordance

with Article 29 of the Law on the National Security Service,

border protection and security intelligence,

counterintelligence procedure and operational-search

activities and the development of measures to combat

smuggling. This change should be included in the

amendments to Article 38 of the trial of the Republic of

Uzbekistan, as well as Article 38 of the trial, "6) Border guard

officials, violation of the state border;" content should be

removed from paragraph 6 [2].

The results of the survey conducted in the above-mentioned

inquiry showed that there is not a separate state. Not a special

inquiry investigating government officials called the inquiry

is not entirely correct. Because of the state administrative

agencies are not always a crime. Investigation, and if the

offense was committed. At other times, their main functions.

In particular, in the case of the regional state fire control

bodies, it is clear that during the years 2008-2014, only two

criminal proceedings are fulfilled.

We believe that a special inquiry and urged the participants of

the criminal proceedings is not simplified. Research has

shown, military units, penal colonies, far away so many ships

inquiry. For example, Navoiy Province No. 34051 military

conducted the survey shows that the crime scene was found

immediately, even before a criminal case not brought sent to

the military prosecutor's office. Although the inquiry that a

separate state, that it is the statutory and other legal

documents, the practice is evident in the lack of interest of

any of them. What is the impression that the inquiry about the

essence of his work, or the organization of seminars. In this

regard, the professor G. Abdumajidov the following ideas: the

"project of Penal Procedure in the process of inquiry that they

have sufficient knowledge of the legal framework, and that a

full inquiry, the preliminary investigation as a form of status.

As a result of the conversation made by the employees of the

penitentiary system there is an inquiry, not just think about

the result of operational search activities ".

In addition, only in the Surkhandarya region of Uzbekistan is

not a small naval presence and there is also the Institute of the

investigation were not identified.

Further investigation authority of the State fire control bodies.

According to statistical data, the number of fires that occurred

during 2006, including Turkey in 2005 increased by 1.8%,

18.3% the amount of damage caused by the fires, and the

number of injured decreased by 0.6% [3].

This is a positive indicator, but a survey of state fire control

bodies of inquiry, such as the above inquiry is not the most

important. There is also determined if a crime is immediately

transferred to the Prosecutor's Office and with information

about how the investigation is being carried out.

Therefore, a special criminal investigation body considered

necessary to change the legal status of the participants in the

criminal proceedings. Therefore, an investigation by the

authorities of the monthly report, fill in the blanks, and other

similar recipe to prevent these bodies in accordance with the

purpose of some of the actions of the criminal procedural

amendments, and their bodies as a result of the above-

mentioned criminal activities simplify.

We believe that all of them to carry out operational-search

activities necessary to end the status of the inquiry body.

Because these institutions need to institute an inquiry and, if

required, is the crime after finding no urgent investigation is

underway. These bodies in accordance with the relevant

article of the Penal Procedure of the Republic of the

penitentiary system is a complete and thorough work.

Inmates are subject of a new criminal procedure of the

Republic of "officer" and the term of its rights and

obligations, and today's requirements as well. Although, in

practice, this name, criminal-procedural legislation, legal

norms regulating relations. Appropriate, the opinion of

Article 39 of the trial the following words are filled with

purpose. "Listed in Article 38 shall have the right to see each

inquiry agency operative officer. Criminal identified to

conduct a preliminary investigation, the right to see the

necessary operational search measures ".

Legislative investigation is not a criminal proceeding related

criminal cases are clearly identified from the list of subjects

because of these organs and the socially dangerous acts that

take place in any round is very difficult to determine, at the

same time to say in advance how the crime has been washed.

For example, military units, penitentiary institutions, far away

to sea-going vessels of any crime, regardless of the inquiry

there are signs of a crime, in any case, the criminal case as

well as the activities of this criminal case is completed by the

investigator.

However, in practice, is not a special investigation on the

activities of the criminal proceedings in order to prevent the

origin of the various misunderstandings, the result of the

analysis of the norms of the Criminal Code of the Republic of

Uzbekistan on August 29, 2001, "the Republic of Uzbekistan

in connection with the liberalization of criminal penalties, the

Criminal Procedure Code and the Administrative Code

amendments and supplements to the Law "On to change the

criteria for classification of crimes stipulated by the Criminal

Code because of the social danger of the law are among the

crimes punishable by imprisonment lighter crimes, including

the crime, punishable by up to three years' imprisonment for

crimes. As a result, Criminal code social danger of crimes

decreased from 18.7% to 42.8%, less serious crimes, 50.4

percent, 30.3 percent and violent crime by 17.6 percent to

15.1 percent, the most serious crimes is 13.3 % to 11.8%.

Provided by the State Criminal code 87 criminal cases and

lightened the punishment, including 26 relevant articles of the

criminal sentenced to imprisonment or removed [4].

The subjects of the investigation is not a criminal proceeding

outlined a list of criminal activities. This, in turn Inmates are

required to include the following new Article:

"The 339-1 criminal inquiry proceeding

1) Article 221, Article 222 of the Criminal Affairs, Ministry

of Internal Affairs of the Republic of Uzbekistan as well

as the leaders of the governing bodies of the system of

execution of penal institutions in the form of arrest, penal

colonies, colonies, detention centers and prisons boy;

2) Provided for in article 259 of the Criminal Code, the

Criminal Code, as well as the state fire control bodies of

investigation department of inquiry;

3) 279 of the Criminal Code. 1.2., And 280-m. 1-q., 282, and

283-m. 1-q. 284, 285 m., 1., 287-m. 1-3q., 288-m. 1., 290-

m. 1., 291-m. 1-q., 292, and 293-m. 1-q., 295, and 296-m.

1-q., 297 m. 1., 298-m. 1., 301-m. 1. Article 302 of the

Criminal Code, as well as military units, commanders,

heads of military institutions and educational institutions;


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4) The journey, the captain of the ship - on board the ship has

the right to conduct any investigation of the criminal

case."

References

1. Decree of the President of the Republic of Uzbekistan №

3994 "On the Action Program dedicated to the 60th

anniversary of the Universal Declaration of Human

Rights" dated May 1, 2008. - National word, 2008.

2. Fayziev Sh. F. Border guard officials are currently

investigating body? // Law Gazette. 2006; 5(B):95-97.

3. Z Nematov, I Kodirov Shield practice. 2007; 4:47.

4. Turaev J. The protection of the Criminal Law of the

policy of liberalization //. 2004; 03(99):22.


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ISSN: 2455-2194, RJIF 5.12



Do the emergency services have a duty of care towards individual members of the public? A critique

under the English tort law

1 Md. Salahuddin Mahmud, 2 Md. Shafiqur Rahman 1 LL.B (Honours), LL.M (SUB), QLD (MU, UK), MBA (CMU, UK), Advocate, Chittagong District Bar Association, Bangladesh

2 LL.B (Honours), DHEL (UoL, UK), Paralegal, Simon Noble Solicitors, United Kingdom

Abstract

The duty of care refers to the circumstances and relationships which the law recognises as giving rise to a legal duty to take care.

The emergency services exist to assist members of the public who are in serious and immediate danger but in certain

circumstances, some of them also bear legal responsibility if they fail to fulfil their obligations. A failure to fulfil the obligations

can result in the emergency services being liable to pay damages to a party who is injured or suffers loss as a result of their breach

of the duty of care. In this article, we have reviewed the duty of care of the police, the fire brigade, the coastguard and the

ambulance service towards individual members of the public as a part of emergency services in the light of English tort law. We

have also discussed the extent of the duty of care of these emergency services and their legal responsibilities. In this article,

doctrinal research method has been applied.

Keywords: ambulance service, coastguard, duty of care, emergency services, fire brigade, negligence, omissions, police

1. Introduction

According to the Oxford Law Dictionary ‘duty of care’ means

“the legal obligation to take reasonable care to avoid causing

damage”. [1] Therefore, the duty of care exists as a control

device in order to determine who can bring an action for

negligence and what circumstances, because it is accepted

that negligence does not exist in a vacuum and that there is no

all-embracing duty owed to the whole world in all

circumstances. The purpose of the emergency services is to

assist members of the public who are in peril but some also

bear liability in certain circumstances for their omissions. The

police, the fire brigade, the coastguard and the ambulance

services are indispensable emergency services. Whether the

emergency services have a duty of care towards individual

members of the public, it depends on the nature,

circumstances and the conduct of the emergency services. It is

important to mention here that these emergency services are

one of the public authorities. [2] So there is a chance that the

Human Rights Act 1998 (HRA) will play a role in the action

against the emergency services for the negligence. However,

these emergency services have a blanket of immunity against

an action in negligence on policy grounds.

2. The Concept and Application of Duty of Care

2.1 The test for determining the existence of duty of care

The doctrine of duty of care provides that a person will only

be liable to another for negligence if he has a duty of care

towards the other and he has breached that duty and caused

damage to the other. The case of Donoghue v Stevenson

[1932] AC 562, established a test for determining whether a

duty of care existed in each specific case and whether

negligence has actually occurred. In this case, Lord Atkins

said: “In English law there must be some general conception

of relations giving rise to a duty of care. The liability for

negligence … is no doubt based upon a general public

sentiment of moral wrong-doing for which the offender must

pay. But acts or omissions which any moral code would

censure cannot in a practical world be treated so as to give a

right to every person injured by them to demand relief. In this

way, rules of law arise which limit the range of complainants

and the extent of their remedy. The rule that you are to love

your neighbour becomes in law, you must not injure your

neighbour ... You must take reasonable care to avoid acts or

omissions which you can reasonably foresee would be likely

to injure your neighbour. Who then, in law, is my neighbour?

The answer seems to be persons who are so closely and

directly affected by my act that I ought reasonably to have

them in contemplation as being so affected when I am

directing my mind to the acts and omissions which are called

in question”. (Donoghue v Stevenson [1932] AC 562 at 580)

In addition, the case of Caparo Industries PLC v Dickman

[1990] 2 AC 605, introduced a three-stage test for imposing

liability for duty of care in the context of negligence. These

are first, ‘was the damage reasonably foreseeable?’ Secondly,

“was there a relationship of proximity between defendant and

claimant?’ Finally, ‘is it fair, just and reasonable in all

circumstances to impose a duty of care?’ This case is a key to

establishing whether a duty of care exists. Beside this three-

stage test, in Murphy v Brentwood District Council [1991] 1

AC 398, the court raised the policy grounds as a fourth-stage

test. But the courts usually consider the policy matter with the

third stage-test.

2.2 Reasonable foreseeability of harm

Foreseeability means that the defendant must have foreseen

some damage to the claimant at the time of their alleged

negligence. Therefore, a duty of care will only be imposed

where a reasonable person in the position of the defendant

would have realised that his carelessness may cause the

claimant to suffer the type of harm that he has suffered. The


78

facts of the each case determine whether the requirement is

satisfied. In Bourhill v Young [1943] AC 92 at 107-108 Lord

Wright said: “This general concept of reasonable foresight as

the criterion of negligence or breach of duty... may be

criticized as too vague, but negligence is a fluid principle,

which has to be applied to the most diverse conditions and

problems of human life. It is a concrete, not an abstract, idea.

It has to be fitted to the facts of the particular case... It is also

always relative to the individual affected. This raises a

serious additional difficulty in the cases where it has to be

determined, not merely whether the act itself is negligent

against someone, but whether it is negligent vis-à-vis the

plaintiff”.

2.3 Proximity

‘Proximity’ indicates the closeness of some sort between the

parties at the time of the alleged negligence, but its precise

meaning remains complex. What will constitute proximity

will vary from case to case. In many negligence cases, the

issue of proximity is really an issue of whether the defendant

was the effective and legal cause of the claimant’s damage.

Therefore, proximity is clearly a complex idea and means

different things in different types of case. It may be used in

the sense of a prior relationship between the parties and

whether that relationship is sufficient to found a legal

relationship giving rise to a duty of care. So there must be a

sufficient relationship of proximity between the parties for the

duty to be imposed.

2.4 Just, fair and reasonable and policy

The condition just, fair and reasonable appears to add little to

the requirement of proximity, especially because the policy is

also considered under the proximity test. This condition

seems to indicate that there must be a limit to liability and that

no duty will be imposed unless it is just, fair and reasonable

in all the circumstances. In Caparo Industries PLC v Dickman

[1990] 2 AC 605 at 633 Lord Oliver said: “...limits have

been found by the requirement of what has been called a

'relationship of proximity' between plaintiff and defendant

and by the imposition of a further requirement that the

attachment of liability for harm which has occurred be 'just

and reasonable.' But although the cases in which the courts

have imposed or withheld liability are capable of an

approximate categorisation, one looks in vain for some

common denominator by which the existence of the essential

relationship can be tested. Indeed it is difficult to resist a

conclusion that what have been treated as three separate

requirements are, at least in most cases, in fact merely facets

of the same thing, for in some cases the degree of

foreseeability is such that it is from that alone that the

requisite proximity can be deduced, whilst in others the

absence of that essential relationship can most rationally be

attributed simply to the court's view that it would not be fair

and reasonable to hold the defendant responsible. 'Proximity'

is, no doubt, a convenient expression so long as it is realised

that it is no more than a label which embraces not a definable

concept but merely a description of circumstances from

which, pragmatically, the courts conclude that a duty of care

exists”.

The policy has always played a major role in determining

liability for negligence. The expression ‘policy’ has been

developed through the cases and what will constitute policy

will vary from case to case. Under the Anns v Merton London

Borough Council [1978] AC 728, the policy had a broad

meaning which encompassed proximity, fair and reasonable

and public policy in the narrow sense in which it is now used.

The courts showed willingness to invoke public policy

principles of immunity where the emergency services and

local authority services were sued in negligence.

The word ‘floodgates problem’ was also used by the court to

indicate the matter of public policy. The accepted definition

of ‘floodgates’ was given by Cardozo CJ in the US case of

Ultramares Corp v Touche (1931) 174 NE 441 at 444 as the

undesirability of exposing defendants to a potential liability

“in an indeterminate amount for an indeterminate time to an

indeterminate class”. A case may still fail on policy grounds

even though it has passed through the proximity barrier. In

Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310

at 410, Lord Oliver said: “...no doubt ‘policy’, if that is the

right word, or perhaps more properly, the impracticability or

unreasonableness of entertaining claims to the ultimate limits

of the consequences of human activity, necessarily plays a

part in the court’s perception of what is sufficiently proximate

… in the end, it has to be accepted that the concept of

proximity is an artificial one which depends more upon the

court’s perception of what is the reasonable area for the

imposition of liability than upon any logical process of

analogical deduction”.

3. Duty of Care of the Emergency Services and its Extent

3.1 The police

The police are one of the most significant emergency

services. The courts have delivered many legal opinions how

far the police owe a duty of care to the individual members of

the public. The first case in relation to the duty of care of the

police was the case of Hill v Chief Constable of West

Yorkshire [1988] 2 All ER 238, before the House of Lords

(the Supreme Court of the United Kingdom). The facts of this

case are well known. The claimant's daughter was attacked

and murdered by Peter Sutcliffe. The claimant claimed

damages for her daughter's estate on the basis that the police

investigations into Sutcliffe's crimes had been incompetent

and had failed to apprehend Sutcliffe before her daughter's

murder. In response to the victim’s mother claim against the

police, the court held that there was no proximity between the

police and the claimant’s daughter. The police could be held

liable if the police themselves negligently cause damage. [3]

Lack of proximity restricts the liability of duty of care. [4] So,

there is no liability in the absence of proximity. [5] However,

in Swinney v Chief Constable of Northumbria (NO 2) [1997]

QB 464, the court said Hill case did not apply to the crime

fighting activities of police.

In Alexandrou v Oxford [1993] 4 All ER 328, Slade LJ said:

“...it is unthinkable that the police should be exposed to

potential actions for negligence at the suit of every

disappointed or dissatisfied maker of a 999 call. I can see no

sufficient grounds for holding that the police owed a duty of

care to this plaintiff on or after receipt of the 999 call … if

they would not have owed a duty of care to ordinary members

of the public who made a similar call”. Thus, the police are

not liable due to failure in response to the emergency call. [6]

However, the police have a duty of care when not to act in a

manner which makes things worse when they arrived at the

scene. In Rigby v Chief Constable of Northamptonshire


79

[1985] 1 WLR 1242, the claimant's gun shop was at risk from

a madman. The police came to deal with the situation. They

fired a canister of CS gas into the shop creating a high risk of

fire without first ensuring that a fire engine was on hand. The

shop and its contents were seriously damaged by fire and the

claimant succeeded in his claim against the police. Similarly,

in Knightly v Johns [1982] 1 WLR 349, in the course of

traffic control following an accident in one of the tunnels in

Birmingham city centre two police officers were instructed to

take a course which involved them riding against the traffic

flow around a blind bend. The claimant was injured in the

ensuing collision and succeeded in his action for damages

against the police.

In Brooks v Metropolitan Police Commissioner [2005] 2 All

ER 489, the court held that the police generally owed no duty

of care to the victims or witnesses in respect of their activities

when investigating suspected crime due to public policy

matter. In Smith v Chief Constable of Sussex Police [2008]

UKHL 50, the court held as per core principle of public

policy, the police owed no duty of care to protect individuals

from harm caused by criminals in the absence of special

circumstances. But the court said that there might have a

remedy under the law of Human Rights. [7] In Robinson v

Chief Constable of West Yorkshire Police [2014] EWCA Civ

15, the Court of Appeal considered the case of a woman

knocked to the ground and injured during the arrest of an

alleged drug-dealer. The Court of Appeal unanimously found

that the police had not acted negligently. The court said that

in order for a “duty of care” to arise three criteria had to be

satisfied: a) foreseeability of damage; b) a relationship of

proximity; and c) whether it is fair, just and reasonable to

impose a duty. In Michael and others v Chief Constable of

South Wales Police and another [2015] 2 WLR 343, the

claimant, Joanna Michael, called 999 and told them that her

ex-boyfriend was going to come home and had threatened to

kill her. Police errors handling the call led to officers arriving

after she had been stabbed to death. In this case, too, the court

did not find against the police.

The well-established cases have made it clear that receipt of a

999 emergency call will not generally establish a relationship

of sufficient proximity between the caller and the police to

create a duty of care to respond or to respond competently.

However, once the police have arrived at the scene they do

have a duty of care not to act in a manner which makes things

worse. In these cases, if they breach their duty of care and that

causes injury or loss to the claimants, the claimant will be

able to recover damages for injury or loss.

3.2 The fire brigade

The fire brigades are also one of the emergency services but

with limited liability. In Capital and Countries Plc v

Hampshire County Council, [8] the brigade arrived after the

sprinklers had begun to operate. Before the brigade had

identified the seat of the fire, or had effectively begun to fight

the fire, they turned off the sprinklers throughout the building.

This action caused the fire to spread out of control, and it

destroyed the whole building. The owners' claim succeeded at

trial. In John Munroe (Acrylics) Ltd v London Fire and Civil

Defence Authority, [9] a special effects technician caused an

explosion on wasteland which adjoined the claimant’s land

which contained Industrial premises. Burning debris from the

explosion caused small fires to break out. The fire brigades

were called and extinguished the fires on the wasteland but

failed to check the claimant’s premises. It was adjudged on a

preliminary issue that there was no duty of care. In the

Church of Jesus Christ of Latter-Day Saints v West Yorkshire

Fire and Civil Defence Authority, The Times, May 9, 1996, a

fire broke out during the night in a classroom attached to the

plaintiff's chapel. The fire brigades were called and arrived

promptly. However, the firemen were unable to fight the fire

due to lack of water supply. Four of the hydrants surrounding

the church were faulty and a further three were not located in

time to fight the fire. Consequently, both the classroom and

the chapel were destroyed. The claimant brought an action for

breach of statutory duty based on the fire services failure to

inspect the hydrants. The claim was struck out on the ground

that the brigade owed no duty of care.

All of these cases went to the Court of Appeal through appeal

application. The Court of Appeal dismissed the appeals in all

three cases. [10] In the Hampshire case it was concluded that

the brigade had made matters worse by turning off the

automatic sprinkler system, and was, therefore, liable. They

have immunity on the ground of proximity, not policy reason. [11] By contrast, in the London and West Yorkshire cases, the

brigades did not cause any fresh danger or make the fires

worse. Accordingly, the brigades were not liable.

Fire brigades operate pursuant to the Fire Services Act 1947,

section 1 of which imposes a duty on every fire authority to

make efficient provision for fire-fighting purposes. On its true

construction, the requirement in s13 of the Fire Services Act

1947 that a fire brigade should take all reasonable measures to

ensure the provision of an adequate supply of water available

for use in case of fire was not intended to confer a right of

private action on a member of the public. The s13 duty was

more in the nature of a general administrative function of

procurement placed on the fire authority in relation to the

supply of water for fire-fighting generally. Accordingly, no

action lay for breach of statutory duty under s13. [12] In

Alexandrou v Oxford [1993] 4 All ER 328, Stuart-Smith L.J.

said: “In our judgment the fire brigade are not under a

common law duty to answer the call for help and are not

under a duty to take care to do so. If therefore they fail to turn

up or fail to turn up in time because they have carelessly

misunderstood the message, got lost on the way or run into a

tree they are not liable”. (p.878)

In simple summary, the position of the fire brigades is that

they do not owe a duty to individual members of the public

and are not under any common law duty to answer a call for

help. However, where the fire brigades actually have done

something which created a danger then they have positive

duty to take a reasonable step to deal with the danger.

3.3 The coastguard

The coastguards are also an important emergency service.

The position of the coastguard who receives an emergency

call appears to be indistinguishable from that of the fire

service. In OLL Limited v Secretary of State for Transport

[1997] 3 All E.R. 897, the organising centre who had settled

the claims brought contribution proceedings against the

Secretary of State for Transport as the person responsible for

HM Coastguard. It was contended that the coastguard owed

the canoeists a duty of care, but had conducted the search and

rescue operation negligently. The principal allegations were

that the search and rescue operation had been launched too


80

late, that a lifeboat had been misdirected to search inshore

rather than offshore, and that a Royal Naval helicopter was

diverted from an appropriate search to an inappropriate sweep

up and down the coastline. The court held that there was no

obvious distinction between the fire brigade responding to a

fire where lives were at risk and the coastguard responding to

an emergency at sea. On that basis, the coastguard had not

been under any enforceable private law duty to respond to an

emergency call. Therefore, the coastguard does not owe a

duty of care to the people at sea except where the

coastguard’s behaviour actually causes harm. They should be

liable if their conduct actually causes any damage. [13]

3.4 The ambulance service

The ambulance services are also one of the emergency

services but have an exception than other emergency services

in respect of liability. In Kent v Griffiths [2000] 2 WLR 1158,

the claimant Mrs Tracey Kent was having an asthma attack.

Her doctor attended her home and called for an ambulance at

16.25. The ambulance, which was only 6 miles away, did not

arrive until 17.05. The claimant suffered respiratory arrest.

Two phone calls had been made to enquire why the

ambulance had not arrived and the operator confirmed that it

was on its way. The doctor gave evidence that had she known

of the delay she would have advised the claimant's husband to

drive her to the hospital. The court held that although the

ambulance services owed no duty of care to respond the call

for help by a large number of people, however, once they

receive the call from 999 for help then there was an obligation

to provide the service for a named individual at a specified

address. [14] In this case the Master of the Rolls Lord Woolf

said: “The fact that it was the person who foreseeably would

suffer further injuries by a delay in providing an ambulance

when there was no reason why it should not be provided is

important in establishing the necessary proximity and thus

duty of care in this case. In other words as there were no

circumstances which made it unfair or unreasonable or unjust

that liability should exist there is no reason why there should

not be liability if the arrival of the ambulance was delayed for

no good reason. The acceptance of the call in this case

established the duty of care. On the findings of the Judge it

was delay which caused the further injuries. If wrong

information had not been given about the arrival of the

ambulance other means of transport could have been used”.

(Kent v Griffiths [2000] 2 WLR 1158 at 1152)

Thus, it appears that generally, ambulance service does not

owe a duty of care to respond the call for help by a large

number of people likewise the police, the fire brigade and the

coastguard. However, if the call is received for help then the

ambulance service owes a duty of care to respond within a

reasonable time because accepting of the call establishes

proximity between the parties.

4. Impact of Human Rights

Besides the policy and the proximity reasons, the human

rights issues play an important role on the duty of care of the

emergency services. The human rights issues have been

introduced to tort law by the passing of the Human Rights Act

1998 (HRA), which came into force in October 2000. The

United Kingdom was an original signatory to the European

Convention on Human Rights 1950 (ECHR), but until the Act

the rights contained in the Convention did not form a part of

national law. Under the HRA 1998, the ECHR applies either

directly or indirectly. Most of the rights in the ECHR are now

directly enforceable against public bodies in English law. A

public authority is defined by s 6 (3) of the HRA 1998 as a

court or tribunal or any person certain of whose functions are

of a public nature. The emergency services are the public

authority by virtue of s 6 (3) of the HRA 1998.

The decision of Osman v United Kingdom [1999] 1 FLR 193

(ECHR), caused great difficulties to the English judiciary.

The European Court of Human Rights reviewed the Court of

Appeal decision in Osman. In this case, the European Court

of Human Rights (ECtHR) held that special immunity given

to the police has breached the Article 6 of the ECHR. The

ECtHR also held that the Court of Appeal had failed to

demonstrate that it had properly considered the scope and

application of such immunity to the facts of the case by

balancing out any competing public interest arguments. This

means that a victim of crime who has suffered personal injury

can bring an action under the HRA 1998, by virtue of ss. 6

and 7, against the police for failure to prevent the crime. But

in Z v United Kingdom [2001] 2 FLR 612, the ECtHR said

that the Osman case was based on a misunderstanding of

English tort law but they did not say that Osman case was, in

fact, wrong. In Van Colle v Chief Constable of Hertfordshire

Police [2008] UKHL 50, the court said with following the

direction of Article 2 of ECHR and Osman v United Kingdom

that, there was a positive obligation on the authority to take

preventive measures to protect and individual whose life was

at ‘real or immediate risk’ from the criminal act of another

as the authority had known or should have known. [15]

Therefore, it appears that it is impossible to ignore the effect

that the Human Rights Act has had, and continues to have, on

the fabric of substantive English tort law.

5. Conclusion

In the light of the above discussion, it is submitted that the

negligence action involving emergency services are

particularly complex as they are one of the public authorities.

Therefore, the courts always look at the policy grounds to

recognise a duty of care. In addition, the courts also apply the

test whether it is just, fair and reasonable in all circumstances

to impose liability for a duty of care. It has been established

through a series of cases that generally, the police, the fire

brigade and the coastguard do not have a duty of care towards

individual members of the public except under special

circumstances as discussed above. On the other hand, the

ambulance service has duty of care towards individual

members of the public if the help call is accepted from 999,

which is different from other emergency services, because, it

has been established through the cases that accepting of the

help call from 999 establishes proximity between the

ambulance service and the call maker. However, the impact

of Human Rights Act 1998 (HRA) shows that the victims

might have a chance to overcome on the claim against the

immunity of the emergency services through using human

rights litigation.

6. References

1. Oxford Dictionary of Law, 7th edn., OUP 2009; 166.

2. Human Rights Act 1998, s 6(3).

3. Rigby v Chief Constable of Northamptonshire, 1985, 2

All ER 985.


81

4. Alcock v Chief Constable of South Yorkshire Police,

1991, 4 All ER 907.

5. Kevin Williams. Emergency services to the rescue, 2008,

JPIL 202.

6. Donal Nolan. The liability of public authorities for failing

to confer benefits, 2011, LQR 260.

7. Iain Steele. Negligence liability for failing to prevent

crime: the human rights dimension, 2008, CLJ 239-241.

8. Reported at first instance at 1996, 1 W.L.R. 1553, Judge

Richard Havery, Q.C.

9. Reported at first instance at, 1996, 3 W.L.R. 988,

Rougier J.

10. Capital and Countries Plc v Hampshire County Council;

John Munroe (Acrylics) Ltd v. London Fire and Civil

Defence Authority; Church of Jesus Christ of Latter-Day

Saints v. West Yorkshire Fire and Civil Defence

Authority, 1997, 2 All ER 865.

11. Brent McDonald. Fire brigade liability: the flame, the

claim and the blame, 2005, PILJ 21-24.

12. Capital and Countries Plc v Hampshire County Council;

John Munroe (Acrylics) Ltd v. London Fire and Civil

Defence Authority; Church of Jesus Christ of Latter-Day

Saints v West Yorkshire Fire and Civil Defence

Authority, 1997, 2 All ER 865.

13. Richard Shaw. Coastguard liability- the Lyme Bay cases,

1998, IJSL 125-128.

14. Case Comment. Negligence: ambulance service– delay,

2000, JPIL 63-65.

15. Claire McIvor. The positive duty of the police to protect

life, 2008, PN 29.


82


ISSN: 2455-2194, RJIF 5.12



Civil society organizations and its limitation

Dr. PK Rana

Reader, M.S. Law College, Cuttack, Odisha, India

Abstract

The legitimacy of Civil Society also rests with the people. While many non-governmental organisations can claim a claim a

mandate to speak on global concerns and represent those interests unrepresented in the traditional political process, they are not

accountable to direct democratic control. Although, these organisations are not democratically structured internally, however, they

shall be accountable to the people in general.

Keywords: civil society organisation, transparency, ineffectiveness

Introduction

Concept of civil society is as old as the democracy and

philosophy of popular participation. It could have form the

clouds of French Revolution or many national movements in

past, but the growth of international organizations and the

search for panacea for good governance have transformed

these socially viable entities to great extent.

The World Bank, on the basis of opinion of a number of

leading research organizations has adopted a definition of

civil society as “the wide array of non-governmental and not-

for-profit organizations that have a presence in public life,

expressing the interests and values of their; members or

others, based on ethical, cultural, political, scientific, religious

or philanthropic considerations. Civil Society Organizations

(CSOs), therefore, refer to a varieties of organizations:

community groups, non-governmental organizations (NGOs),

labour unions, indigenous groups, charitable organizations,

faith-based organizations, professional associations, and

foundations".

When we compare with government, civil society means a

realm of social life - market exchanges, charitable groups,

clubs and voluntary, associations, independent churches and

publishing houses - institutionally separated from territorial

state institutions. This is the sense in which civil society is

still understood today: a complex and dynamic ensemble of

legally protected nongovernmental institutions that are

nonviolent, self-organizing, self-reflexive within government

control. In most regions of the world, the language of civil

society has also been applied to such disparate political

phenomena as the decline and restructuring of welfare states,

the rise of "free market" economic strategies, and the growth

of social movements.

International Strategy of Civil Society: Civil Society is recognised by international organizations like

UNO, World Bank and others. The Integrated Civil Society

Organizations (ICSO) System is been developed by the

Department of Economic and Social Affairs (DESA). Over

13,000 CSOs have established a relationship with the

Department of Economic and Social Affairs (DESA). The

vast majority of these CSOs are NGOs; there are also

institutions, foundations, associations and almost 1,000

Indigenous Peoples Organizations (IPOs) listed as CSOs with

DESA - which maintains a database of registered CSOs. Once

registered with DESA, CSOs can also apply for consultative

status with the Economic and Social Council (ECOSOC). If

consultative status with ECOSOC is granted, the organization

can participate in relevant international conferences convened

by the United Nations and in meetings of the preparatory

bodies of these conferences.

The United Nations is both a participant in and a witness to

the growing global civil phenomenon. Non-governmental

organizations (NGOs) and other civil society organizations

(CSOs) are active partners of UN system and are valuable UN

links to civil society. CSOs play a key role at major

conferences of United Nations and have become

indispensable partners for UN efforts at the national level.

NGOs are consulted on UN policy and meetings and

conferences for NGO representatives who are accredited to

UN offices, programmes and agencies.

The World Bank first began to interact with civil society in

the 1970 through dialogue with non-governmental

organizations (NGOs) on environmental concerns. Today the

World Bank consults and collaborates with thousands of

members of Civil Society Organizations! (CSOs) throughout

the world. The World Bank has learned through these three

decades of interaction that the participation of CSOs in

government development projects and programs can enhance

their operational performance by contributing local

knowledge, providing technical expertise, and leveraging

social capital. Further, CSOs can bring innovative ideas and

solutions, as well as participatory approaches to solve local

problems.

Civil Society is the critic, and advocate of the unrepresented

or the underrepresented before government. Often

government fails due to its weak structure or policy and due

to problems that may not be solved through planning from

above, here comes the role of civil society. It creates

awareness, interest and call for involvement. It has capability

to mobilize the people and to penetrate the hearts and minds

of the citizens who may find it hard to believe that their

governments are making a genuine effort to tackle corruption.

And, above all, it is essential to raise public awareness, to

awaken society to the disastrous effects of corruption and to


83

get across 'the message that fighting it is possible.

The Growth of Civil Society The present rumour is imminent demise of nation-stales, but

they remain the predominant actors in the world political

system, now challenged by global civil society. Global civil

society is made up of nongovernmental organizations

(NGOs), International Non-governmental Organizations

(INGOs) and Transnational Networks (TNs). These non-state

actors are individuals and groups with transnational interests

and they frequently have counterparts in other countries than

with their countrymen.

NGOs and INGOs are structured along traditional lines with

headquarters, officers, membership fees, etc. Networks,

however, have no person at the top and none at the centre.

They are forms of organization characterized by voluntary,

reciprocal and horizontal patterns of communication and

exchange. Networks stress fluid and open relations among

committed actors working in specialized issue areas.

They survive on finances donated. Donor concern with

strengthening civil society in the South is a recent

phenomenon. It appears to have emerged from the new policy

agenda on good governance that was increasingly promoted

by official donors during the 1980s and the early 1990s. As a

result of this agenda, Northern donors began to explicitly

promote political reform through development co-operation.

Some donors advocate policies that limited state interference

and reduced corruption in the public sector. There was a

particular emphasis on aid recipient countries improving their

records on democratic elections, human rights and the rule of

law, to name some of the more common areas of reform.

The unresponsiveness of India's political parties and

government has encouraged the Indian public to mobilize

through nongovernmental organizations and social

movements. The consequent development of India's civil

society has made Indians less confident of the transformative

power of the state and more confident of the power of the

individual and local community.

Limitations of Civil Society The civil society is not an integrated and territorial unit with

constitutional mandate. It is more social than political,

inherently more market oriented than social. The government

has not made the clutches free. With the ideology the CSOs

operate, there are still some lapses in everyone's mind. To

least few of them:

1. Lack of Accountability and Transparency

Non-government organizations are organizations that are not

controlled by government and are nonprofit making. The

allegations against the CSOs / NGOs are that they are

supposed to be effective on their objectives and also

accountable to those they serve. However, the NGOs have

increasingly failed by being unaccountable to those

they are supposed to work for, they have continually been

ineffective in their performance and they have adapted to

elitist nature whereby they segregate themselves from others.

They consider as independent government within a State and

potentially have challenged the legal and financial status of

their territory by their external links. The testimony of their

activities is selfish in the way they work for a group that

catches the attention of others. The ineffectiveness, the

unaccountability and the elitist nature of NGOs is evident

among much renowned organization and this can be seen to

be true when one assesses their performance with regard to

the current debate on good governance and civil society.

CSOs continue to face the complex issue of accountability;

when CSOs rather than the state provide basic social services,

such as health care, education and water supply to whom are

they accountable? Some CSOs are membership organizations

that seek to mutually benefit their members and are directly

accountable to them. But the vast majority of social services

delivered through CSOs are provided by professional

development organizations with self-appointed boards

(NGOs). Such boards rarely contain representatives of

beneficiary communities but are normally made up of urban-

based elites. Thus accountability downward to the

beneficiaries of the services is generally weak in the CSO

sector. In practice, the strongest form of accountability facing

CSOs undertaking service delivery projects is to their

international funders in industrialized countries.

The concept of accountability of an NGO is gaining

worldwide acceptance. People often have their reservations

against the projects in which the money that they are giving

out will be spent by an NGO. The Governments of various

countries are trying to formulate policies according to which

every NGO must be listed and full report of the projects be

made to the Accountability Committee.

One of the defining features of globalization has been

profound proliferation of the NGOs and the increasing

influence and reach of such actors at global stage. There has

been sustained boom on international trade and investment

activity, the not-for-profit activity also has grown with equal

magnitude. But, like the purpose-built trade and investment

agreements, the not-for-profit activities have been under

looked by the architects of global governance, presently the

international legal regime governing the not-for-profit

organizations is far more skeletal than the for-profit activities.

2. Performance

There is the question of performance. Can the access,

coverage, quality and efficiency of CSO service delivery be

up to mark in quality and quantity?

3. Ineffectiveness

How can CSOs engage effectively with government at

different levels? One of the major directions taken by public

sector reforms in many developing countries is

decentralization. This is an instance of ineffectiveness.

4. Inefficiency

UK's Overseas Development Institute (OD!) Zimbabwe, India

and Bangladesh has reported that CSOs are successful in

benefiting the poorest households or women, or ensuring self-

sustainability of local CSOs.

5. Deficiency

Clearly CSOs, on their own, cannot overcome the wider

factors disabling health service access and public sector

service provision. Services of CSO cannot be seen as a

substitute for the state. It is suspected that the CSOs may not

handle epidemics ir a populous country like India.


84

6. Elite Capture

Evidences of Elite Capture have been found to be the central

theme of management of CSOs. It is the broad base of

functioning of CSOs and highlight on their prospects through

elites? and media.

7. Away from Good Governance

The root of origin of CSOs is Good Governance, but the

ideologies of Good Governance are on turmoil on the

functioning of CSOs. The current debate on good governance

and civil society emphasizes on peace building,

democratization, quality leadership, responsibility and proper

civil institutions. NGOs should assist in helping in peace

building in countries in which they are situated, they should

be involved in the resolving existing issues in the country for

example by helping to find solutions to a countries conflicting

issues when they arise, mediating disputing groups when

there are ethnic tensions caused by political instability,

coming up with measures that will reduce tribalism, nepotism

and corruption, help in recovering to normal order.

8. Fragmenting the Government

It can be quoted as example: Many believe that strengthening

civil society in Latin American countries will strengthen

democracy. Others think that civil society associations

weaken and fragment the political parties and government

institutions on which democracy depends.

9. Destabilizing the State

The not-for-profit organizations often are blamed for arousing

‘destabilizing a nation’ by the wealth of foreign finance and

on the pleas of human rights as evidenced from reports on

Zimbabwe, Human Rights Watch.

Reference

1. Ashutosh Varshney. Status of Civil Socity, The New

Indian Expres, 2011.

2. Parthi RK. Civil Society & Global Policies, Arie Publ. &

Dist. New Delhi, 2006.

3. Arato A. Civil Society, Constitution & Legitimation,

Lanham M.D.: Rowmen & Littlefield, 2000.

4. Hall JA (ed.). Civil Society, Cambridege Polity Press,

1995.

5. Bawa PS. Civil Society Initiatives in Dealing with

Corruption, IIPA, 2011.


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ISSN: 2455-2194, RJIF 5.12



Constitutional and judicial perspectives on environment protection

Dr. PK Rana

Reader, M.S. Law College, Cuttack, Odisha, India

Abstract

Public Interest litigation has played a vital role for protecting and preserving environment. According to the court, life, health and

ecology have greater importance to the people than the loss of revenue and employment. The conservation of forests and wildlife

and reduction of pollution levels are vital components of such consideration of social justice.

Keywords: public interest litigation, environment protection, judicial activism

1. Introduction

Judicial activism may be taken to mean the movements of the

judiciary to probe into the inner functioning of the other

organs of the government i.e,. The Executive and the

Legislature. It is the function of the Legislature to make law

and of the Executive to implement the law but both the organs

have failed to discharge their functions satisfactorily. In such

circumstances, it is not the power rather duty of the judiciary

to uphold the Constitution and compel other organs of the

government to discharge their functions effectively. The

Supreme Court, being the guardian of the Constitution, cannot

remain mute spectator [1]. More to say, the concept of judicial

activism is based upon rule of law, which is based upon the

principles of freedom, equality, non-discrimination, fraternity,

accountability and non-arbitrariness [2]. It has rightly been

said that to safeguard the rule of law, on the foundation of

which the super-structure of democratic edifice rests, judicial

intervention becomes need of the hour. Development of the

Public Interest litigation (PIL) has also provided significant

assistance in making the judicial activism meaningful. The

Strategy of PIL was devised for increasing citizen’s

participation in the judicial process for making access to the

judicial delivery system to one, who could not otherwise

reach court for various reasons. Thus, any member of the

Public having sufficient interest can maintain an action for

public injuiry [3].

2. Growth of public interest litigation

Since more than Four decade, Public Interest Litigation (PIL)

has played a vital role by which belonging to all walks of life

and especially the down-trodden are getting social justice

from the Supreme Court as well as the High courts.

Introducing the PIL concept in the case of Ratlam Municipal

Council v. Vardhichand [4] case, Justice Krishna Iyer

observed that social justice is due to the people and therefore

the people must be able to trigger off the jurisdiction vested

for their benefit to any functioning. He recognized Public

Interest Litigation as a constitutional obligation of the Courts.

In the case S.P. Gupta v. Union of India case [5], Justice P.N.

Bhagwati says: procedure being merely a handmaiden of

justice it should not stand in the way of access to justice to the

weaker section of Indian humanity and therefore, where the

poor and the disadvantaged are concerned this court will not

insist on a regular writ petition and even a letter addressed by

a public spirited individual or social action group acting pro

bono public would suffice to invite the jurisdiction of this

court. Thus, the courts through PIL, have recognized not only

taxpayers’ or consumers’ standing economic or uneconomic

interests but also standing in citizens’ groups concerned with

protection of natural environment, vehicular industrial

pollution [6], negligence in management of solid waste,

construction of large projects and increasing deforestation [7].

3. Environment protection under the constitution

From the Vedas, Upanishads, Smrites and other ancient

literatures we find that man lived in complete harmony with

nature. From the ancient scriptures of Hindu religion one

learns that the people gave so much importance to trees,

plants, wild lives and other things of the nature that they

developed a long tradition of protecting and worshipping

nature.

The earth has all along been considered as “Goddess Mother”

in the ancient scriptures and revered for its immense potential

of preserving, protecting sustaining all creatures including

human being on it. It is a matter of great surprise that in spite

of such a rich reverence shown to the earth and its

environment, our constitution as enacted and adopted in 1949

hardly averred to natural environment.

Therefore, following the U.N. Conference on the Human

Environment held at Stockholm, Sweden, in 1972, the

Constitution of India was amended by the 42nd constitutional

amendment and the subject of “ecology and environment”

was incorporated for the first time through articles 48A and

51A(g). By incorporating article 48A in part IV of the

Constitution, which contains the directive principles of state

policy, the state has been given the constitutional mandate to

protect and improve the environment and to safeguard the

forest and wildlife of the country. Since the principles laid

down in the part IV of the Constitution are fundamental in the

governance of the country, therefore, it has been now the

constitutional duty of the state to deal with the matters

relating to environment, forest and wildlife of the country.

The 42nd constitutional amendment did not confine the

constitutional obligation to protect and improve environment

only in the hands of the state but brought the obligation down

to the level of the citizens also by incorporating article 51A


86

(g) in a newly introduced part, namely part IV-A of

fundamental duties. This amendment is considered to be a

revolution, as it was not only first of its kind in constitutional

history expressing concern for environment and its protection,

but it also accorded recognition to Buddhist and Gandhian

environmental ethics, as article 51A(g) made it a fundamental

duty for all the citizens of India not only to protect and

improve the natural environment but also to have compassion

for all living creatures. Another significant aspect of articles

48A and 51A (g) in spite of the non-enforceability in the

court of law of the provisions of part IV of the Constitution,

articles 48A and 51A (g) are being interpreted by the

judiciary in such a way in the background of the public trust

doctrine that the judiciary is striking down the governmental

orders, decisions and legislations which are inconsistence

with the provisions of these articles.

4. Right to environment and judicial action

Our Apex court after Maneka Gandhi [8] case, which deals

with the human right relating to life and personal liberty, has

given birth to new environmental jurisprudence through its

judicial activism that right to life includes light to clean and

healthy environment. The Supreme Court relying on the

international concept of sustainable development i.e. inter-

generational equity [9], which calls upon the state to bear

solemn responsibility to conserve and use environment and

natural resources for the benefit of the present and future

generation.

Similarly, another principle that emanates from the concept of

sustainable development is that economic and industrial

developments must accommodate environmental protection.

The Supreme Court relying on this principles ordered closure

of certain mines that caused environmental damage in Doon

Valley [10]. In Ganga Pollution [11] case also the apex court

relying on the same principle ordered the closure of tanneries

and held that though the leather industry brought much

needed foreign exchange for the economic development of

the country this should not be allowed at the cost of

environment. According to the court the life, health and

ecology have greater importance to the people than loss of

revenue, employment etc.

The apex court has through judicial activism expanded the

scope of article 32 and is utilizing it for fashioning new

strategies for protection of environment. For example, the

precautionary principle and polluter pays principle, which are

offshoots of the concepts of sustainable developments, are

being applied by the courts in the context of protection of

environment by utilizing article 32 in appropriate

proceedings.

Therefore, to prevent degradation effect on environment and

ecology the court has applied the precautionary principle

according to which the state and statutory authorities must

foresee and prevent all the clauses of environmental

degradation by taking appropriate measures. Further,

according to this principle it is always the burden of the

industrialist to show to the state authority that his industry

will be environmentally safe and not harmful [12].

The polluter pays principle has already been utilized by the

Supreme Court in several cases [13]. To do justice to both the

environment and the victims of environmental pollution.

According to this principle the remediation of the damaged

environment is part of the process of sustainable development

and as such the polluter is liable to bear the cost of reversing

the damaged ecology as well as the cost of the sufferer. This

philosophy of ‘public trust’ [14] finds place in our

constitutional commitments and our judiciary is committed to

upholding the same. This is precisely why judges are

frequently called on to weigh individual interests on the

scales of social justice. The conservation of forests and

wildlife, as well as the reduction of pollution-levels are vital

components of such considerations of social justice. It is on

account of these considerations that the higher judiciary must

continue to play a vigorous role in the domain of

environmental protection.

Therefore, it will not be exaggeration of fact that the global

movement on protection and improvement of environment

has brought upon a profound effect on the constitution and the

Judiciary in India. As we know that environmental

degradation is not a national problem rather it is an

international problem and environmental pollution is not

confined to any territorial jurisdiction of a country rather it

has trans-boundary effect causing environmental harm in

other countries.

References 1. Kailash Rai. Public Interest Lawyering, CLP, Alld, 2009;

pp.37-39.

2. Massey IP. Administrative Law, EBC, Lucknow, 2008;

pp.27-28.

3. Ibid., at p.439.

4. AIR 1980 SC 1622.

5. AIR 1982 SC 149

6. MC Mehta v. U.O.I, (1999)6 SCC12

7. TN Gadavarman v. U.O.I. (2006) 1 SCC 1

8. AIR 1978 SC 597

9. Vellore Citizen Welfare Forum v. UOI, AIR 1996

SC2715

10. R.L.E.K. Dehradun v. State of UP, AIR 1985 SC 652

11. MC Mehta v. U.O.I., AIR 1988 SC 1037

12. Supra Note 9.

13. Enviro Legal Action v. Union of India, AIR 1996 SCW

1069 and M.C. Mehta v. Union of India, AIR 1987 SC

965

Role of Legal Aid in Contemporary India

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